
    HERMAN ROSENBERG, et al., Respondents, v. HUGO BLOCK, et al., Appellants.
    
      Money had and received—When action for will lie, though it be not actually proven that defendant received, the money—When receipt thereof will be presumed.
    
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided May 2, 1887.
    Appeal from judgment in favor of plaintiffs, and from order denying a motion for a new trial.
    
      The complaint alleged that there was a limited partnership between plaintiffs created under the laws of Virginia, under the name of the plaintiff, Rosenberg, who was the general, and the plaintiff, Bottigheimer, a special partner; that said firm consigned to the defendants merchandise upon the agreement that the defendants should sell the same as agents for and on account of the plaintiffs, and remit the proceeds of sale to the plaintiffs; that the defendants, as such agents, did sell said merchandise for about the sum of $800, which they received, but that they did not remit the proceeds of said sale to plaintiffs; and that payment of said proceeds of sale has been demanded, but defendants neglect and refuse to pay the same. The answer averred, among other things, that the alleged special partnership was merely nominal and fictitious; that Rosenberg was the sole person interested in the business and its assets, the pretended partnership having been resorted to to prevent the creditors of Rosenberg from reaching his property—and that he was indebted to defendants for goods sold and delivered; that the property mentioned in the complaint was received by the defendants from Rosenberg, as his individual property, under an agreement with Rosenberg, individually, that defendants would, on the sale thereof, account to him individually. The defendants also set up the indebtedness of the plaintiff, Rosenberg, as a counter claim.
    One of the grounds, assigned by the defendants on their motion to dismiss the complaint at the close of the plaintiffs’ case, was that it had not been proved that at the time of the commencement of this action the defendants had received a dollar in cash as the proceeds of the goods. At the close of the case, the defendants also moved to dismiss on the ground that the plaintiffs had elected by this action, and in the form in which it is brought, to hold. the defendants for money had and received, and, in the absence of proof that the defendants had received any money as the proceeds of these goods prior to the commencement of this action, the plaintiffs must fail. Both of these motions were denied.. The Court at General Term (after stating the facts as above) said:—On the former trial of this case, the same motions were made before the trial court, and were denied—and this point was presented to the general term on an appeal from the judgment then entered. On that appeal, the general term refused to reverse the judgment. This is a decision that the action could be maintained, and the judgment upheld, in the form in which the action was brought. The defendants appealed from the said judgment of the general term to the court of appeals, and the judgment of the general term was reversed, not on the ground above specified, but solely on the ground that there was error in the rejection of certain testimony which was offered by the defendants. It seems to me that, if the court of appeals had been of the opinion that the plaintiff had no cause of action at all, they would have reversed the judgment on this ground, and not have ordered a new trial because of errors in the rejection of evidence. It is true that, as a general rule, the action for money had and received, can be maintained only for money actually received, yet the action is in its nature an equitable one, and can be maintained when it is shown that the party either has or ought to have—and therefore in law has—the money in his possession. Risdon v. De LaRua, 51 Super. Ct. 63, affirmed, 98 N. Y. 653. In this case, we must assume that the defendants, in law, have in their possession the money for the goods which they sold in violation of the terms of the agreement under which they received the goods......”
    
      Samuel W. Weiss, for appellants.
    
      Root & Strong, for respondents.
   Opinion by Truax, J.; Sedgwick, Ch. J., and Dugro, J., concurred.

Judgment and order affirmed with costs.  