
    Catherine A. MoClung, as Administratrix, Resp’t, v. Mary A. Foshour et al., App’lts.
    
      (Supreme Court General Term,, Third Department,
    
    
      Filed February, 1888.)
    
    1. Pleadings—Scope of—What findings unauthorized by.
    The complaint in this action stated a cause of action at law, for money had and received by the defendants to the use of the plaintiff. The answer was a denial of the allegations of the complaint. The evidence showed that the defendants, in pursuance of a contract made with the plaintiff, received certain moneys in satisfaction of certain claims of the defendants. The referee found that the contract under which the plaintiff permitted the defendants to receive the money, was without consideration in law; that in making it the plaintiff was acting under the influence of the defendants, and that the agreement was not her own act and was-invalid. Held, that this finding was unauthorized by the pleadings.
    2. Same—In equity—Must state facts entitling to equitable belief.
    
      Held, that the plaintiff, having performed the contract, had no relief at law against her acts under it, and acquiescence in it, and that, to avoid the legal effect of her own acts, she must resort to equity, and, for that purpose, must set forth in her complaint the facts upon which she based her claim to equitable relief.
    
      D. M. DeWitt, for appl’ts; William, Lounsburg, for resp’t.
   Landon, P. J.

We think the plaintiff failed to establish the case stated in the complaint. The complaint states a cause of action, at law, for money had and received by the defendants to the use of the plaintiff. The answer is a. denial.

The evidence showed that the defendants, in pursuance of a contract made with the plaintiff, received certain moneys in satisfaction óf certain claims of the defendants. It, therefore, appeared .that the defendants received the moneys, not to the use of the plaintiff, but to their own use. The case stated in the complaint therefore failed.

But the referee found that the contract under which the plaintiff permitted the defendants to receive the money, was without consideration in law, that the plaintiff, in making it, was acting under the influence of the defendants and their legal advisers, and said agreement was not of her own act and will, and that it was invalid. He refused to find that no undue influence or coercion was-practiced to induce her to perform the agreement after it was made.

The recovery was upon an entirely different cause of action from that stated in the complaint and inconsistent with it. The case discloses that it was an essential and necessary part of the plaintiff’s case to show, and her evidence tended to show, that she made a contract with the defendants, and then in pursuance of that contract, paid the defendants the money she now seeks to recover, but that the contract was made and its terms performed under such circumstances as amounted to a fraud on her. The plaintiffs having performed the contract had no relief at. law against her acts under it and acquiescence in it. It was necessary for her to avoid the legal effect of her own acts. Thus her complaint should have been in equity to procure relief against fraud or mistake, or both. When a plaintiff invokes equity in order to establish an affirmative cause of action, he must set forth in. his complaint the. facts upon which he bases his claim to equitable relief.

This is enjoined by the requirement of the Code that the complaint must contain “a plain and concise statement of the facts constituting each cause of action.” It is enjoined by numerous authorities. Bailey v. Ryder, 10 N. Y., 363; Rome Exchange Bank v. Eames,l Keyes, 588; Truesdell v. Sarles, 104 N. Y., 164; 5 N. Y. State Rep., 565; Arnold v. Angell, 62 id., 508.

The action in equity proceeds upon the theory that no adequate remedy exists at law; the action at law proceeds upon the theory that no relief in equity is needed. There are indeed, cases in which it may be uncertain whether legal or equitable relief ought to be granted, like specific performance, but even in such cases the relief must be consistent with the complaint.

In the present case the complaint, being at law, implies that the plaintiff in order to make out her case in the first instance does not need to impeach the contract or its performance upon equitable grounds. Her recovery implies the impeachment of both upon equitable grounds. Hence, the cause of action stated, and the cause of action upon which recovery is had, are inconsistent with each other.

It may not be improperio add that if the plaintiff had made out aprima facie case at law, and the defendants had pleaded and proved the contract and its performance as new matter constituting a defense, then the plaintiff, without further pleading, unless a reply had been ordered (Code Civ. Pro., § 516) could have assailed the contract and its performance upon equitable grounds (id., § 522), and if upon such grounds the defense had been overcome, the prima facie case first made would remain intact, and a recovery should follow.

The case made by the evidence was not merely an immaterial variance between pleadings and proof, but an entire failure of proof. If the plaintiff made out any right to recover, it was not in the case she had before the court.

Judgment reversed, referee discharged, new trial granted, costs to abide the event.

Fish and Parker JJ., concur.  