
    Charles A. Sterling et al., Appellants, v. The Chelsea Marble Works, Respondent.
    (Supreme Court, Appellate Term,
    April, 1909.)
    Implied contracts — Obligation to reimburse for payments made to defendant’s use: Voluntary payment — Necessity of request: In-
    surance of another’s goods.
    To support an action to recover money voluntarily paid for another, it is essential that a request, on the part of the person benefited, to make such payment should either expressly be shown or be fairly implied from the circumstances of the case.
    A complaint alleged that, on or about a certain date, the plaintiffs, at the request of the defendant, procured and delivered to it four policies of liability insurance in a certain company; that said policies insured the defendant against loss by liability, and that the fair and reasonable value of said insurance was a certain sum, no part of which had been paid. The answer alleged that, on the date mentioned in the complaint, defendant procured and effected the liability insurance mentioned in the complaint through plaintiffs as agents of the insurance company; that the indebted- - ness or consideration for said insurance, if any, was due and payable to the company and not to the plaintiffs, and that defendant was not indebted to plaintiffs in any sum whatever on account of said insurance, or for any other thing. A motion for judgment upon the pleadings and to dismiss the complaint on the ground that it stated no cause of action having been denied, the complaint was amended by adding an allegation that plaintiffs paid the sum alleged for said insurance; and the answer was not amended so as to deny this allegation. The motion to dismiss, renewed upon the ground that plaintiffs had no capacity to sue, was denied. One of the plaintiffs, the only witness called at the trial, testified that defendant’s officer asked him to get the insurance, which he did, and that he delivered the same to defendant and thereafter paid the premium to the insurance company because it required such payment, and that no part of such sum had been repaid to plaintiffs by the defendant. Held, that it was a necessary part of the employment of plaintiffs by defendant to pay the premiums, and the request of defendant so to do was fairly to be implied from the circumstances of the case; and that it was error to dismiss the complaint at the close of plaintiffs’ case, though without prejudice to the commencement of another action.
    Appeal by the plaintiffs from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, first district, borough of Manhattan.
    Chas. De Hart Brower, for appellants.
    George F. Harriman, for respondent.
   Gildersleeve, J.

The complaint alleges, that, on or about the 17th day of March, 1908, the plaintiffs, at the request of defendant, procured for it four policies of liability insurance in the American Fidelity Company, and delivered the policies to the defendant; that said policies insured the defendant against loss by liability; and that the fair and reasonable value of said insurance was and is the sum of $138, no part of which sum has been paid.” The answer alleges that on or about the 17th day of March, 1908, the defendant procured and effected certain liability insurance with the American Fidelity Company of Montpelier, Vermont, through plaintiffs as agents of the said insurance company, which insurance is the same referred to in the complaint; that the indebtedness or consideration for said insurance, if any, is due and payable to the American Fidelity Company of Montpelier, Vermont, and not to the plaintiffs; and that defendant is not indebted to plaintiffs in any sum whatever, on account of said insurance, or for any other thing.” At the opening of the trial defendant moved for judgment on the pleadings and to dismiss the complaint, on the ground that it stated no cause of action; whereupon the complaint was amended by adding the allegation that plaintiffs paid the said sum of $138 for said insurance. Ho amendment was asked to the answer denying this allegation. The motion to dismiss was renewed, on the ground that plaintiffs had no capacity to sue, and denied. The plaintiff French was the cnly witness called at the trial, and he testified that defendant’s officers asked him to get the insurance, which he did,' and he delivered the same to defendant, and that, thereafter, ho paid the premium of $138 to the insurance company, because said company required such payment, and that no part of such sum had been repaid to plaintiffs by defendant. At the end of plaintiffs’ case, defendant renewed its motion to dismiss on the same grounds as above stated; and some time thereafter the court rendered its decision dismissing the complaint, without prejudice to the commencement of another action. Plaintiffs appeal. There is no proof of any assignment by the insurance company to the plaintiffs of its claim for premiums against defendant, if any it had; nor is there any proof that plaintiffs were the recognized agents of the insurance company. On the other hand, the allegations of the complaint, as well as the proofs taken at the trial, show that plaintiffs acted as agents of defendant in procuring said insurance, being requested or employed by defendant to do so. The payment by plaintiffs to the insurance company of said premiums secures the defendant against any claim that might be made therefor by the insurance company against defendant. It is true there is no proof or allegation of a particular request by defendant that plaintiffs should pay such premiums, nor of any promise by defendant to repay the amount to plaintiffs; but the latter were empowered to procure such insurance, and the proof is that they were obliged to pay said premiums in order to carry out their employment by defendant, as the insurance company required the payment of such premiums, which had been charged against plaintiffs by the insurance company, not against defendant. It seems to us that the court below took too narrow and technical a view of the complaint, while the evidence must be given a construction as favorable to plaintiffs as reasonably possible, since the complaint was dismissed on plaintiffs’ testimony alone. It is true that no person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other to perform, and no debt can be implied in law from a voluntary payment of the debt of another, where the payment is made without, the request of the other by one who is under no legal liability or compulsion to make it (National Bank of Ballston Spa v. Board of Supervisors, 106 N. Y. 488); and the rule is that, in order to support an action to recover money voluntarily paid for another, it is essential that a request on the part of the person benefited to make such payment, either expressed or fairly to be implied from the circumstances of the case, should be shown. City of Albany v. McNamara, 117 N. Y. 168, 172. But, in the case at bar, it was a necessary part of the employment of plaintiffs by defendant to pay such premiums, as we have seen; and, therefore, the request of defendant may fairly be implied from the circumstances of the case. It seems to us that it was error to dismiss the complaint.

Seabury and Lehman, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  