#### Matter of the General Assignment of Carl Gschihey to Henry A. Deimel, for the Benefit of Creditors.

(County Court, Herkimer County,

August, 1898.)

Money paid — Mistake — County Court, Power- of — Assignment for benefit of creditors.

Where money has been paid by mistake to an assignee for the benefit of creditors in satisfaction of a judgment recovered by the assignee against the party paying, the County Court has power, upon an accounting by such assignee, to direct the repayment of such money to such party.

The parties interested in this controversy were brought into court by a citation duly issued upon a petition of the assignee, asking for his final accounting.

At the return of the citation, Jewett W. Brown presented a petition - showing that in November, 1897, the said assignee as such recovered a judgment in the Supreme Court against the said Jewett W. Brown and William H. Prowse, for damages, $500’, and costs, $298.77, making a judgment of $798.77; and at the same time-in another, action the said assignee as such recovered a judgment in the Supreme Court against the said Jewett W. Brown and Thomas C. Cooper for $1,353.13 damages and $298.76 costs, making $1,651.87.

*496That the judgments weré docketed in the clerk’s office of the county of Herkimer, where the judgment-rolls were filed and transcripts of said judgments were thereafter filed in the-clerk’s office of Albany county,'and the judgments docketed therein.

That thereupon executions were issued and payment demanded of. both of said judgments, and in December following the said Jewett W. Brown paid both of the judgments.

That at that time he had not seen the judgment-rolls nor the reports of the referee upon which they were based, and paid the judgments, believing that the items of damage in each were different arid not identical, but that he has since learned that the damages for each case were identical and made up of the'same items in each case; and that the payment .of'$500 damages- in each of said - judgments by the said petitioner Jewett W. Brown was under a mistake of fact.

The actions, it appears, had been pending since 1886, and Brown avers that he did not remember' that the items of damages were as claimed in each of said actions.

It .appears that the action against Brown and Browse was up.on an undertaking of $500, upoil the issuing of an attachment, and a" claim was made for damage to goods,, etc.

The action against Brown and Cooper was .upon an undertaking given by them upon an appeal from the order of the Special Term vacating the attachment aforesaid and a claim made for damage to goods, etc. •

And it appears from the judgment-rolls that the items of damages were the same in each of said actions; that in each of'said actions the damages amount to $833.95, arid are identical arid the same; and in the case against Brown and Cooper interest was added' and a recovery had for the full amount of damages, interest and costs; that in the action against Brown and Browse, while the item of damages are the same in figures and words, the recovery was had for only $500 and costs, for- the reason that the undertaking being only ¡for $500, and that this $500 of damages are in the Brown and Cooper judgment.

Brown further avers that he would not have paid the said $500 or any part thereof, had he known that it was for the identical damage recovered in the other action.

And the said Jewett W. Brown, by said petition, asks this court that an order be made directing the assignee to refund to- him the said $500 so paid by a mistake of fact. ■

*497The assignor objects to the granting of such order and claims there is no jurisdiction on the part, of the court to make such order.

There is no controversy as to the facts, and the case is submitted substantially on that understanding. .

Charles Bell, for petitioner Jewett W. Brown.

R. E. Steele, for assignor.

George W. Smith, for assignee.

Devendorf, J.

It appears from the facts as presented that the sum of $500 was paid by petitioner Jewett W. Brown, to the assignee by a mistake of fact.

It was paid to and received by him by virtue of his position as such assignee; he now .brings that fund with the other money of the estate into court upon this proceeding,- and asks an order distributing and disposing of the fund.

The said money may not be a part of the assigned estate, but this court, the money having been brought into the proceeding, must decree some disposition .of it; that is brought about by the peculiar circumstances of the case.

It is urged by the assignor in line with the decision of the court In Matter of Witmer, 40 Hun, 64, that the County Court has jurisdiction only in respect to'the powers given it by the act and that it is vested with equity power in reference to- the trust and any -matter involved therein only, and that the remedy ¡of the petitioner, Jewett W. Brown, is by action.

I think the case at hand is not parallel with the Matter of Witmer, and that this fund can be disposed of here without opposing or crossing that decision.

This money was paid to the assignee as such upon a judgment rendered in an action wherein he was plaintiff in his representative capacity; the fund was received by the assignee and he now brings it into this court and makes it as far as he can by his account rendered and his previous management of it a fund of the estate.

The very party who by mistake paid the money into the assignee’s hands is rightfully a party to the accounting; he is one of the parties who, under the law, was entitled to notice of the proceedings upon the accounting; at all events he was made a party to it in the petition and by the citation directed to him; and when *498it becomes necessary for the court to order distribution or payment of the funds alleged by the assignee to be in his hands for that purpose, -the petitioner Jewett W. Brown, already a-party in court, upon the proceeding, asks that $500, which he paid by mistake "to the assignee, be refunded.

If the court has power to make any order whatever as to this. fund it should have, I think, the power to order it paid to the party to whom it belongs. Matter of Morgan, 34 Hun, 217; Matter of Wiltse, 5 Misc. Rep. 114.

The money with the other funds o.f the estate is in the hands of the. assignee, and all parties interested are in court, and an order must, be made with reference to the fund,, and instead of ordering the account amended, by striking .out :$500- of the fund on hand and refusing all mention thereof, or decreeing' it elsewhere, I think the court can best subserve the interest of the parties by placing it with its owner;, and, I think, the statute is broad enough to permit of that result. . _ .-

Therefore, an order may be entered directing the refunding by the assignee of the $500 to the petitioner Jewett W.- Brown.

Ordered accordingly.