
    Sarah E. Kane, App’lt, v. Lura E. Aldridge, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 20, 1894.)
    
    Assumpsit—Money had and received.
    Where plaintiff fails to prove what amount of money has been received by defendant, or that, if she has received any money from the sale of plaintiff’s share of the joint devise, it 'was received with an express or implied agreement to pay the amount to her, she fails to establish a cause of action in assumpsit.
    
    Motion for a new trial on exceptions ordered to be beard at general term in the first instance.
    
      Eugene Van Voorhis, for pl’ff; P. Chamberlain, Jr., for def't.
   Lewis, J.

—This action was brought to recover $1,380 which the plaintiff alleged was had and received by the defendant to the use of the plaintiff. It appeared from the pleadings and proof: That the plaintiff was one of the heirs at law, and a legatee named in the will, of Sarah A. Aldridge, deceased, which will had been duly admitted to probate. That Walter T. Aldridge was the executor named in the will, and that letters testamentary were duly issued to him. By the terms of said will, the testator gave and bequeathed to each of her heirs (five in number, the plaintiff being one of the five), the proceeds arising from a salé of the land and premises known as her “ homestead,” in the city of Rochester ; the proceeds to be divided equally, share and share alike, after the sale. The executor was, by the will, authorized to sell and convey the real estate for the best price he could obtain therefore. That the plaintiff thereafter conveyed her interest in the property to the defendant, in order to facilitate the sale thereof. The conveyance was without consideration. The property was, thereafter, conveyed by the defendant and the other heirs to one Ashton. Aldridge, as executor, executed and delivered to the purchaser, Ashton, a deed of said premises. The proceeds of the sale were paid to the defendant. The plaintiff duly demanded of the defendant her portion of the proceeds before the commencement of the action. After proving the foregoing facts, the plaintiff rested her case. Upon a suggestion from the court that he was about to nonsuit the plaintiff, her counsel offered to show “ that, prior to the executor’s deed of the property in question, Walter T. Aldridge, the executor, applied to the plaintiff to give a quitclaim deed of the premises to the defendant, Lura, and told her it was to enable him to facilitate the sale of the property, and when the property was sold she should be paid her share of the money, and that in pursuance of that arrangement she did execute such a deed to Lura, receiving nothing therefor. That Aldridge conveyed the property, as executor, and permitted Lura to take the money, and she has never turned over any share to the plaintiff-The business was done by Philetus Chamberlain, who was the ah torney for Walter T. Aldridge, the executor, and also for Lura. lie sent the deed to Walter Aldridge,—to California,—to be execu id, delivered the deed on its receipt by him, received the money, and paid it over to Lura.” The court excluded the offer, and the plaintiff excepted. There was no proof that the defendant received the proceeds of the sale of the plaintiff's interest with any understanding or agreement with any one that she would hold them for, or would pay them or any part of them to, the plaintiff.

The case is barren of any evidence showing what amount was received from the sale of the property, or what sum, if any, was paid to the defendant by the executor. The executor was called as a witness, and denied that he had paid anything to the defendant. The plaintiff produced upon the trial, and had marked for identification, an account of the executor, filed in the surrogate’s office, which contained a statement of the amount received for the sale of the property, but the account was not offered or received in evidence. The plaintiff having failed to prove what amount of money had been received by t.he defendant, or, if she received any money from the sale of the plaintiff’s share, that it was received with an express or implied agreement to pay the amount to the plaintiff, she failed to establish a cause of action, and was therefore properly nonsuited. It is consequently not necessary to examine the question whether, if the amount paid to the defendant had been shown, the facts would have justified a verdict for the plaintiff. The motion for a new trial should be denied, and judgment directed for the defendant on the nonsuit

All concur.  