I am disposed to affirm this judgment.

The referee has not found that the plaintiffs acted under any mistake or misapprehension in making the payment, nor has he found that there was any clerical error in the award. If we can go into the evidence, on this appeal, I think it far the most probable conclusion that the mistake was in the latter.

There would be difficulty in reviewing the assessment collaterally on defendants’ motion. But when the plaintiffs claim to have made an over-payment by mistake, and sue to recover it back, I am not prepared to say that the defendant mav not prove a clerical error in the report, to show that the amount received was what he was entitled to, and what the commissioners intended to award. At least the plaintiffs should have obtained an actual finding of payment by mistake. That is not found; and we are not called upon to infer it from the proofs, in order to reverse the judgment.

Besides, when money is paid under a mutual mistake, I do not think an action lies to recover it back, without proof of demand, or, at least, notice of mistake.

I have no doubt that the commissioners made a mistake in awarding Erben only fifteen thousand eight hundred and five dollars, instead of the amount which the plaintiffs actually paid him, twenty-four thousand eight hundred and five dollars. He was informed by the commissioners that this was the amount which they had awarded him. They had awarded his neighbors, Bacon & Raven, for three thousand five hundred and fourteen superficial feet on lots adjoining Erben’s, *260thirty-four thousand seven hundred and fifty-nine dollars; being at the rate of nine dollars and four cents per square foot. From Erben’s lots there were taken two thousand six hundred and eighty superficial feet, which, at the same rate (nine dollars and four cents per square foot), would have amounted to twenty-four thousand two hundred and thirty-seven dollars, a little less than the plaintiffs paid him. It is proved that his lots were worth as much as those of Bacon & tiaven.

Suppose'A. owes B. two thousand dollars, but, in an action by B., a judgment is by some mistake rendered for only fifteen hundred - dollars; and A. afterward pays B. the full amount, can A. recover back the five hundred dollars? Execution could not be issued against A. for more than fifteen hundred dollars; but if he voluntarily pays the amount actually due, can he recover back the difference ?

I am of opinion that the judgment should be affirmed.

delivered a dissenting opinion to the effect that there being no evidence to show that the comptroller intended to pay Erben more than he was legally entitled to, and no evidence that the plaintiffs as a corporation ever recognized the payment, and since defendant testified, and the referee found that he believed, the full amount was due him by the report, it was apparent that the excess was paid in mistake of facts, and hence the last finding of the referee that plaintiffs voluntarily delivered the warrants in full knowledge of the matters stated in the report, could not be reconciled with the previous finding that the money was paid on an erroneous understanding of the amount actually awarded,* nor was it sustained by the evidence ; and hence it was a case for applying the rule that money paid in a mistake of facts may be recovered back; and that this claim could not be resisted by overhauling the award; although it was probable that defendant was not awarded as *261much as he should have been, and failed to have the error corrected on account of the erroneous information given him by the clerk.*

A majority of the judges concurred in affirming the judgment.

Judgment affirmed, with costs.