115 N.Y. 47 | NY | 1889
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *49
The indebtedness of the county of Westchester to the Willard Asylum is not disputed, but the controversy arises over the defense of payment. On October 1, 1884, the treasurer of the asylum sent a bill to the county requesting that its amount be remitted by draft with exchange on New York. Instead of so doing, the county treasurer returned his check as such, dated October thirty-first, drawn upon J.M. Masterton Co., bankers, at Mount Vernon, N.Y. The check was received by the asylum on November third. On that day, and on the assumption that the check would be paid, the treasurer of the asylum sent a receipt for the amount of the *51
indebtedness. The check did not thereby become payment. (Burkhalter v. Second National Bank of Erie,
On this state of facts the appellant contends that the draft of Masterton Co. operated as payment of the debt as between the present parties; and when met by the finding of fact that there was no agreement, understanding or intention that the draft should be taken as payment, answers by assailing that finding, and by a special reliance upon the decision of this court in the case of People v. Cromwell (
If, on the other hand, the improbable supposition is indulged that Masterton Co., when they mailed the draft on the seventh, honestly thought it good and themselves able to continue business, then they were honestly mistaken, and the draft was sent and received under a mutual mistake as to existing facts. The case of Roberts v. Fisher (
We find no error in the judgment, and it should be affirmed, with costs.
All concur.
Judgment affirmed.