
    Louise Hoff, as Administratrix, ets., Resp’t, v. Jean Coumeight, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 4, 1895.)
    
    Pleading—New cause of action—Substitution.
    Where a defendant has consented to the litigation of a substituted cause of action by omitting to object to the proof, he will not on appeal be heard to complain that the recovery was upon a cause of action which was not alleged in the complaint.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict in favor of plaintiff.
    
      Joseph G. Rosenbaum, for app’lt; II. G. Eudlich, for resp’t.
   Bischoff, J.—The

action was in conversion, and at the trial, before any evidence was taken, the defendant’s counsel moved the dismissal of the complaint for insufficiency in substance. The motion was denied, and the complaint was not thereafter amended.

We think that the exception to the ruling presents error for which the judgment rendered at trial term of the court below would have to be reversed but for the waiver and substitution of a cause of action differing from the one attempted to be alleged in the complaint, and hereinafter referred to. Baylie, Trial Prac. 160, and cases collated. It was alleged in the complaint that the plaintiff’s intestate had on deposit in the Manhattan Savings Institution in the city of New York the sum of three hundred and fifty-four 72-100 ($354.72) dollars, under the name of Philibertha Bailly, aud on which deposit she received and held a bank book, issued by said bank under said name; further, that between the 15th day of September, 1892 and the 22d day of November, 1892, at the city of New York, the defendant came into the possession •of the said bank book, and between said days drew from said deposit, wrongfully obtained possession of, and converted to his own use, the sums so on deposit in said bank, excepting the sum of nine 72-100 dollars to the damage of intestate of three hundred and forty-five ($345.00) dollars.

' Viewing the complaint in either aspect, the allegations were insufficient to show a conversion of the bank book or of moneys belonging to the plaintiff or her intestate. It was not alleged that the defendant tortiously secured possession of the bank book, in which event an allegation of demand and refusal of its return would have been unnecessary. . Powell v. Powell, 71 N. Y. 71; Horey v. Bromley, 85 Hun, 540; 67 id., 147; Hayes v. Insurance Co., (Ill. Sup.) 1 Lawy. Rep. Ann. 303, 307, and cases collated in note (18 N. E. 322); Cooley, Torts (2d ed.) 530, 531. In the absence of an allegation to the effect that such possession was tortiously acquired, however, a cause of action in conversion was not apparent, without an allegation of the defendant’s refusal to return the bank book after due demand therefor. Hall v. Robinson, 2 N. Y. 293; Tripp v. Pulver, 2 Hun, 511; 5 Am. & Eng. Enc. Law, ‘‘Demand,'’ subtit. “ Trover,” p. 528. No such demand and refusal were alleged.

With regard to the moneys which the defendant was alleged to have withdrawn from the Manhattan Savings Institution, the complaint not only failed to show the right of the plaintiff or of her intestate to the possession thereof, but it affirmatively appeared that neither of said persons was entitled to the possession of such moneys : yet the plaintiff’s right to the possession of the thing alleged to have been converted is a constituent of a valid cause of action in conversion. Deeley v. Dwight, 132 N. Y. 39; 43 St. Rep. 409; Clements v. Yturria, 81 N. Y. 285; Kerner v. Boardman, 39 St. Rep. 61. The moneys deposited by the plaintiff’s intestate became the property of the bank; her relation to the bank, in respect to those moneys, being that of creditor. Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; 2 Am. & Eng. Enc. Law, “ Banks and Banking,” sub tit. “ Depositors and Customers,” p. 93, and cases in notes. Hence, if the defendant wrongfully secured possession of moneys from the bank, the latter, and not the plaintiff or her intestate, was prima facie entitled to the return thereof.

Without objection, however, the plaintiff was permitted to introduce evidence which was abundantly to the effect that while the plaintiff’s intestate was confined to her cot in the hospital of the Societe Erancaise de Bienfaisance,” stricken with paralysis, and wholly or partially bereft of her mental powers, the defendant secured her signature to checks to his order, and aggregating $345, by means of which he obtained that amount from the Manhattan Savings Institution for the account of the plaintiff's intestate. That the procurement of the checks under the circumstances mentioned was a fraud upon the intestate, their possession by the defendant tortious ah inito, and the receipt of their amount from, the bank, to the detriment of the intestate, a conversion of the checks, are self-evident propositions. Under the authorities hereinbefore referred to, therefore, a demand for the return of the checks was not essential to a sufficient cause of action ; and having consented to the litigation of the substituted cause of action, such consent being inferable from the omission to object to the proof thereof, the defendant will not on appeal be heard to complain that the recovery was upon a cause of action which was not alleged in the complaint. Knapp v. Simon, 96 N. Y. 284 ; Frear v. Sweet, 118 N. Y. 454; 29 St. Rep. 972. As to the weight of the evidence, the judgment of affirmance of the court below is conclusive upon us. Meyers v. Cohn, 4 Misc. Rep. 185; 53 St. Rep. 223.

Viewing the action as having proceeded for the conversion of the checks, the trial justice properly refused the request of the defendant’s counsel to charge that no conversion was shown. Other exceptions to rulings which are urged on the appeal do not present sufficient merit to require discussion.

The judgment of the trial and general terms of the court below should be affirmed, with costs. „

All concur.  