
    Charles H. Miller and Wilbur Larremore, as Trustees of James E. Miller and Emma Z. Smedley, under the Last Will and Testament of Jane M. Miller, Deceased, Respondents, v. Fanny Harris and George W. Lewis, Appellants.
    First Department,
    February 8, 1907.
    Mortgage — action by mortgagee for fire insurance moneys had and received by mortgagor under contract to rebuild—liability of cotenant not joining in mortgage — evidence — judgment in foreclosure to show deficiency — declarations against interest of joint mortgagors.
    A complaint which alleges in substance that the plaintiffs, as mortgagees, and entitled to be paid the proceeds of fire insurance On the premises, .consented to the payment of a. loss to the mortgagors upon their promise to use the sum in erecting a new building upon the premises equal in value to that destroyed, and the failure of the mortgagors to fulfill that promise, states a causé of action for money had and received. The failure of the mortgagors to fulfill the promise imposes upon them an obligation to repay the insurance money received by them to the mortgagees and on'failure to do so they hold the same as money had and received.
    .When, however, it appears that an owner of an undivided interest in the property did not join in the mortgage and was not liable for the amount secured to be paid and had no knowledge of the mortgage or even of her interest in the property, a judgment against her for money had and received is not warranted upon mere proof that she signed the proof of loss and indorsed the check of the insurance company, which were presented to her for signature by the other mortgagors, and when there was no promise to erect a building made by her or on her behalf.
    In such action for money had and received the record of the judgment ahd sale on foreclosure is properly admitted in evidence to show that the amount due on the mortgage had not been paid, this being a prerequisite to an action for money had and received.
    The declarations of the mortgagors who acted together in obtaining the insurance money is admissible against them but not against the other owner of the property.
    Appeal by. the defendants, Fanny Harris and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 23d day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of May, 1906, denying the defendants’ separate motions for a new trial made upon-the minutes.
    
      Ezekiel Fiwman, for the appellants.
    
      Otto O. Wierum, Jr., for the respondents.
   Ingraham, J.:

The plaintiffs, as trustees, held a mortgage dated May 23, 1898, upon certain real property owned by the defendants and oné Nathan Lewis, since deceased, as tenants in common. The buildings ' on the mortgaged premises were insured, loss, if any, payable to the plaintiffs-as mortgagees. The property was conveyed to the defendants and Nathan Lewis on the 24th day of February, 1899, subject to the mortgage. On -the 9th- day of May* 1899, the building upon the property was destroyed- by fire, and tlie amount.payable under the policies of insurance was adjusted at $2,75.0. The complaint alleges that this sum of money was paid by the insurance companies “to and received by the defendants and said Nathan Lewis, as- tenants in common of said property*' to the use of the plaintiffs-, who consented to such payment being so made to said parties, upon the express promise made to them by the said Nathan Lewis and the defendants that- the said moneys would be used in the erection of like buildings upon said premises of a value equal to the value of those destroyed; ” that neither -the defendants nor the said Lewis did rebuild any building upon the premises in place of those destroyed ; that subsequently, the plaintiffs foreclosed the mortgage upon the property; that the property was. sold, and there resulted a deficiency of $4,991.75.' -The-.answers put at issue" these allegations of' the complaint. At tiie end1' of the trial counsel for . the defendants moved to dismiss the complaint upon the ground that the plaintiffs had failed to prove any cause of action against the defendants, and, further, upon the ground that they had failed to prove that the sum of $2,750, or any sum, was paid to pr received by the defendant Fanny Harris for the use of the plaintiffs, or ' for the use of any other person;'or that she made any promise in relation to rebuilding the house upon t-he premises, or that she authorized any person to make any contract on her behalf in rela^ tion to rebuilding the premises,, and upon other grounds. This motion was denied, and the defendants excepted. The court then left the case to the jury with instructions that it would be the duty of the jury to determine whether or not by the consent of the plaintiffs this fund wept into the hands of Nathan Lewis alone, as claimed by the defendants, or whether they all, either actually or constructively, received the same. The court then stated that the evidence of the promise was certain conversations had with Nathan Lewis, a brother of the defendants, who was also a part owner of - the property, at which conversations, or a part of them, the defendant George W. Lewis was present; that the defendant Harris was sought to be charged as having authorized Nathan Lewis to act for her, so that he was her agent, authorized to make the promise relied upon ; and left it to the jury to say whether or not Nathan Lewis was the agent of the defendant Harris. At the close of this charge counsel for the defendants said that he was 'perfectly satisfied with the charge, and the jury subsequently found a verdict for the plaintiffs for the amount claimed, with interest.

I think the allegations of the complaint are sufficient to sustain a. cause of action for money had and received.. By the policies of insurance the plaintiffs were entitled to receive the amount due' from the insurance companies on account of their mortgage. It appeared that checks were drawn by the insurance companies payable to Nathan Lewis and the defendants and to the plaintiffs ' as trustees. Thus, to secure the payment of these checks, it was .necessary that they should be indorsed by Nathan Lewis ánd the defendants, and also by the plaintiffs as trustees. These checks were received by Nathan Lewis or the defendant George Lewis, and were presented indorsed by defendants and Nathan Lewis to the attorneys for the plaintiffs who had charge of the matter with a request that the plaintiffs indorse the check and sign the receipt for the money from the insurance company; that the attorney with whom the conversation was had refused to indorse the checks, saying that the trustees expected to get the money from the insurance company and expected to. rebuild the buildings upon the mortgaged premises; that the defendant George Lewis said that Mr. Spencer, one of the attorneys for the plaintiffs, had agreed that “We” (evidently referring to Nathan Lewis and himself) had agreed with Mr. Spencer that they were to get the money and to put.it into new buildings to be erected upon tire premises that they were to put a-great deal more money into the building than' was to be received upon the insurance policies, and that Mr. Spencer had agreed to allow them to take the money for that purpose. The matter was then referred to Mr. Spencer. Mr. Spencer testified that he had a number of conversations with Nathan Lewis in relation to the payment of this money by the insurance companies; that Nathan Lewis and the defendant George Lewis had stated to him that they proposed to rebuild the house which had been upon the property and to use the insurance money and to add to it a considerable sum of money; and they asked Mr. Spencer whether the trustees would be willing to allow him to use the insurance money for that purpose. No agreement was made at that time; that subsequently Nathan Lewis -had another interview with Mr. Spencer who said that the trustees would allow him to -use the insurance money for the purpose of erecting a new building upon the 'premises. This was before the receipt of the checks from the insurance companies. He further testified that there was a subsequent conversation, when the cheeks from the insurance companies were presented fqr indorsement, at which the defendant George Lewis was present, and that, the said checks were then indorsed by the attorneys for the plaintiffs. The defendant Harris was called, as a witness by the plaintiffs . and testified that Nathan Lewis and the defendant George W. Lewis were her brothers; that she had no recollection of signing at any time any papers in relation to this property, and never knew that she was a part owner of it; that her brother Nathan Lewis died in. the year 1901; that she never heard about there being a fire; that she did not know her brother liad an interest in the property, or that she had an interest in it; that she trusted her brother and left the matter entirely in his hands; that the two checks for the payment of this insurance policy were indorsed by her in blank; that she never knew that this property was: mortgaged for $6,000 ; that at the time she signed the papers her brother Nathan Lewis said, “ Fanny, I had a fire up there, and I would like you to sign this paper; ” that she did not read the paper, as she trusted her brother. These papers were the proof of loss and, apparently, the checks were for the.payment of the loss.-

I think there was evidence to sustain this judgment against the defendant George W. Lewis. He had to do with the collection of the amount of loss of the insurance companies, took these checks , to the attorney for the plaintiffs, and stated that he and his brother were to have that money to erect new buildings upon the premises, and was present at the time that the final agreement was made between his brother Hathan Lewis and the plaintiffs’ attorneys. The money was thus paid to Hathan Lewis and the defendant George Lewis upon the promise that the amount, of the insurance money would be invested in new buildings upon the premises which would enhance the value of the property covered by the mortgage, and for that purpose, and that purpose only, the attorneys for plaintiffs consented to the payment to Hathan Lewis. The failure of Hathan Lewis and George W. Lewis to carry out their promise imposed ah implied obligation upon them to at least repay the money that they had in their hands which was to be used in the erection of a building upon the premises which would increase the plaintiffs’ security. This money, under the policies of insurance, was payable to the plaintiffs. It was their money, placed by them in the hands of Hathan and George Lewis upon a promise that it would be invested in a building upon the premises. The failure of Hathan and George Lewis to keep that promise left them with so much money belonging to the plaintiffs in their hands which the plaintiffs were entitled to recover as money had and received. The case as to the defendant Harris, however, is quite different. She had no interview with the plaintiffs or their attorneys, made no promise to them and received none of the money. She testified that she knew nothing about the transaction, except that she was requested by her brothers to sign some papers, which she did; but the signing of these papers was only the preliminary step necessary to place the money representing Lhe value of the buildings destroyed by fire in the hands of the plaintiffs. It was after she had signed these papers and indorsed the checks that they were presented to the plaintiffs’ attorneys for their signature and indorsed by them upon the agreement specified. There was no promise made on behalf of the defendant Harris, or no money received by her, unless Hathan Lewis was her agent to receive the money and was authorized by her to make a promise in relation to it. It is true that it appears that she was the owner of an undivided interest in the property,, "but she liad never signed tlie bond and mortgage, and was not liable for the amount secured to be paid. Her evidence, which is the only evidence in relation tó her Connection with the transaction, was that she did not'kmw that she had an interest in the. property and had nothing to do with the transaction; .and while she says she trusted her brother and Ief everything to him, in- the absence of evidence to show that, she had anything to do with the property or the insurance mónéy, or its receipt,, or the agreement under which it was received, she was not liable for the money that was received and used by-Nathan Lew,isi without .her .knowledge dr consent.

The appellants. raise several questions relating to the rulings on ; evidence, but we tliink' no error Was committed The evidence' of the'sale under the judgment of foreclosure, while possibly not necessarily a part of the plaintiffs! cause of action, was competent to show that the' amount due on the mortgage had not been paid, for if .the plaintiffs had realized the amount of their mortgage by a sale of the property, they could not maintain this action for money had and received, While the evidence of declarations of Nathan or George Lewis was not competent as against the defendant Harris, the declarations of Nathan Lewis were competent as against George Lewis, as - the evidence- is sufficient to show that they were acting together in obtaining this insurance. The other objections to-testimony do not require discussion. . ■

I think, therefore, that the complaint should have'been dismissed as against the defendant Harris, and that as to her the judgment Should be reversed and a new trial ordered, with costs to the said appellant to abide the event, and that the. judgment as to the' defendant George W; Lewis Should be affirmed, with' costs.

Patterson, P. J,, Laughlin, Clarke and Scott, JJ., concurred.

As to defendant Harris, judgment and order reversed and new' trial ordered, costs, to appellant to abide, event;; as to defendant ' Lewis, judgment and order affirmed,, with Costs.. Order Hied.  