
    JAMES L. HARWAY, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.
    
      Set-off—of came of action arising from tort—how may Toe pleaded—Assignee of came of action.
    
    An action of assumpsit lies for money obtained by oppression, imposition, extortion or deceit; and the demand for the money so obtained, may be set up as a set-off in an action brought by the party against whom it exists. The assignee of such party takes a cause of action subject to such defense of set-off. In setting off a cause of action, in form, in assumpsit, but arising from tort, it is proper to set forth the fraud and collusion upon which the cause of action depends. •
    Appeal from an order of the Special Term, striking out portions of the answer alleging fraud and collusion, as irrelevant and redundant.
    
      E. Delafield ¡Smith, Corporation Counsel, and James G. Garter, for the appellants.
    
      J. S. Lawrence, for the respondent.
   Davis, P. J.:

The plaintiff in this action sues as assignee of one Berrian, to recover divers large accounts against the city, for goods, wares and merchandise, sold and delivered to the defendant by said Berrian. The accounts, and the indebtedness thereon, are not denied. The sole defense set up by the answer, is a set-off of an alleged indebtedness of Berrian to the defendant, for a larger amount than plaintiff claims. The indebtedness is alleged to be for large sums of money, paid by the defendant to Berrian, in amounts and at times specified, and obtained by means of fraudulent practices, pretenses and representations, by said Berrian, in collusion with, or by deception of, the officers of defendant. The answer avers and sets out, concisely and without redundancy, the fraudulent means by which the money is alleged to have been obtained, and alleges that the same was received by Berrian, to and for the use of defendant. It is well-settled law, that “if one man has obtained money from another, through the medium of oppression, imposition, extortion or deceit, such money is, in contemplation of law, money received for the use of the injured party; it is not the money of the wrong-doer, and he has no right to retain it, and the law therefore implies a promise from him, to return it to the rightful owner, whose title to it cannot be destroyed and annulled by the fraudulent and unjust dispossession. The tort may be waived, and an action brought for the recovery of the money, upon the implied contract.”

The cases are very numerous which establish that an action of assumpsit, at common law, for moneys thus obtained, could have been brought upon the implied promise. The statute declares what demands may be the subject of set-off,, and specially names causes of action arising upon contract, express or implied; and wherever assumpsit will lie for money had and received, the demand therefor maybe set off in an action of assumpsit, brought by the party against whom it exists; and the assignee of such party takes the cause of action, subject to the defense of set-off, to the same extent as it existed against the assignor.

It is true, the defrauded party in such case has a choice of remedies. He may pursue the person, guilty of the fraud in an action of tort for damages sustained by the injury, or waiving that remedy, he may treat the matter as simple debt, and proceed upon the implied contract to repay the money. There is no doubt, therefore, that upon proofs of the facts alleged in the answer the defendant will be entitled to enforce his defense of set-off in this action to the extent necessary to extinguish the demands held by the plaintiff as assignee of Berrian. The answer of defendant, it will be observed, proceeds altogether upon the right springing out of the alleged fraud. It claims, nothing, except upon the ground that Berrian obtained the excessive payments, by fraudulent pretenses and practices. The allusion to the city officers who passed upon and paid the accounts, is not made for the purpose of averring mistake as a distinctive ground of claim, but to aver that those officers were deceived by, or in collusion with, Berrian’s alleged frauds. It will be necessary therefore, on the trial of the action, to give evidence of and satisfactorily show the alleged frauds, in order to establish the basis of the implied promise to pay back the money had and received; and a jury must pass upon those questions. This fact does not, however, change the nature of the alleged defense, which is all the while a mere set-off of indebtedness, arising upon an implied contract. In all cases of implied contracts, the facts upon which the law implies the contract must be made to appear by proof or admission; and so, in this case, unless the plaintiff admits the alleged indebtedness, the defendant must proceed to prove it, which can only be done by proving the facts out of which the law implies it. Hence, it is no ground to exclude a set-off upon an implied contract, that, to maintain the implication requires evidence satisfactorily establishing a tortious or fraudulent transaction. In speaking of a party’s right to assert his claim in such cases as a contract for the payment of money, the books speak of him as “ waiving the tort.” This phrase means no more than that by treating the matter as a contract, he waives his right to pursue it as a tort with the peculiar remedies, penalties, and consequences belonging to it in that character.

He by no means waives the right to give evidence of the transaction, and of its true character, in order to raise the implication upon which his demand in contract must rest, for that would be to waive all remedy. The waiver of the tort, therefore, is simply a declaration that, for the purposes of redress, the party elects to treat the facts as establishing an implied contract which he may enforce, instead of an injury by fraud or wrong, for the committing of which he may demand damages, compensatory or exemplary. In either case, the facts remain the same, and are alike the subject of proof, and the basis of the remedy, except as to such incidents as, in the action for tort, may bring in the elements of willful or malicious injury, to give scope for larger damages. Under the common law rules, it was sufficient to aver the indebtedness in the form of the well-known counts of i/ndebitatus assumpsit; but it would also have been proper to plead by special declaration in assumpsit, alleging the fraudulent acts, and averring the indebtedness arising therefrom, and a promise to pay.

It is doubtful whether, under the Code, the former of these modes should be allowed, but it is not necessary to pass upon that question. The real question on this motion is, whether, where facts exist upon which the law implies a promise (in the absence of an express one), to repay money fraudulently obtained, it is irrelevant, in a pleading under the Code, to set up the facts which must be proved, and aver as the gravamen of action the liability and promise which the law implies from them. We are of opinion that it is not irrelevant, but more nearly conforms to the spirit and requirement of the Code, and is the wiser and safer course of pleading. It certainly is no detriment to the plaintiff, but rather to his advantage to have notice in advance of the precise facts he will be called upon to meet; and where the statement is made by complaint or answer in a concise form, without redundancy (which means vain repetition), and the facts stated are such as are essential to be proved on the trial, to constitute a defense or action, the opposite party cannot be said to be aggrieved thereby.

W e are of opinion that the order, striking out portions of the answer as irrelevant and redundant, is erroneous, and should be reversed, with costs of this anpeal, and the motion denied, with costs.

Daniels and Beady, JJ., concurred.

Order reversed, with costs.

Note.—The case of James W. Mills, an assignee of Daniel Berrian of a similar claim, was argued with the above cause. Bep. 
      
       Chambers v. Lewis, 2 Hilt., 591; Putnam v. Wise, 1 Hill, 235, 240, note; Neate v. Harding, 6 Exch., 349.
     
      
       2 R. S., Edmonds’ ed., p. 365, § 18.
     
      
      
         See statute above cited ; Whitcomb v. Williams, 4 Pickering, 228 ; The Duke de Cadaval v. Collins, 4 A. & E., 858 ; Byxbie v. Wood, 24 N. Y., 607 ; Selwyn’s N. P., 7 Amer. ed., 82, and notes ; Chitty on Contracts, 10 Amer. ed., 704, et seq.; Waite v. Leggett, 8 Cow., 195 ; Clark v. Dutcher, 9 id., 674; Coit v. Stewart, 50 N. Y., 17; Andrews v. Artisans’ Bank, 26 id., 298; Myers v. Davis, 22 id., 489; Martin v. Kunzmuller, 37 id., 396.
     
      
       Code, sec. 160, and see Wait’s annotated Code, page 293, and the cases cited in notes.
     