#### Gust. Pers. Wern, Appellant, *v.*The Brooklyn Union Coal Company, Respondent.

(Supreme Court, Appellate Term, First Department.

January, 1913.)

Subrogation — application of rule to actions at law.

The rule of subrogation may be extended to actions at law.

Where plaintiff, on behalf of a corporation in which he was a stockholder, contracted with defendant for the performance of certain work and, by mistake, receipted for more money than was received by him and paid such excess to the corporation, he is *36entitled to be subrogated to its right to recover such amount under the rule that, where an agent incurs a specified obligation to the benefit oí his principal, he is subrogated to the rights oí the principal against those primarily liable to him.

Appeal by plaintiff from a judgment of the Municipal Court of ■ the city of Mew York, borough of Manhattan, seventh district, rendered in favor of the defendant after a trial before the court without a jury.

Allan Lee Smidt, for appellant.

Edward Cahn, for respondent.

Gerard, J.

Plaintiff brought this action to recover from the defendant the sum of $374 and interest for money paid by him to the Mead Morrison Manufacturing Company for a debt due to it from the defendant. The defendant rested without offering any evidence, and the learned justice ordered judgment for the defendant.

It appears that, at the time of the occurrences involved in this action, plaintiff was a stockholder in the Mead Morrison Manufacturing Company and manager of one of its departments and, as such, had dealings for the company with the defendant, and on behalf of the Mead Morrison Company he made a contract with the defendant for work amounting to $2,062.50, and had charge of the collection of the money due. The plaintiff claims that by mistake he receipted on behalf of the Mead Morrison Manufacturing Company to the defendant for $374 more than he received from the defendant on behalf of the Mead Morrison Manufacturing Company; that he paid the $374 to the Mead Morrison Manufacturing Company, and this sum of $374 plaintiff alleges was never paid to him by the defendant, and he claims that he is entitled to be subrogated to the rights of the Mead Morrison Company to recover this sum of $374 from the defendant, claiming the benefit of the rule of law that, where an agent by mistake incurs a specified obligation to the benefit of his principal, he is subrogated to the rights of the prin*37cipal against those primarily liable to the principal; and the sole question to be determined on this appeal is whether or not the plaintiff is entitled to such right of subrogation.

It would seem that in this state this remedy of subrogation, originally supposed to be confined to actions of an equitable nature, has been extended to actions at law. Judge Vann, in Arnold v. Green, 116 N. Y. 571, said: *“*The remedy of subrogation is no longer limited to sureties and *quasi*sureties, but includes so wide a range of subjects that it has been called the *‘*mode which equity adopts to compel the ultimate payment of a debt by one who in justice, equity and good conscience ought to pay it.’ ” And in Dunlop v. James, 174 N. Y. 411: “ It would seem that it is now the recognized rule in this state that the rule of subrogation may be extended to actions at law.”

The judgment herein must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.