
    WILLIAM A. DOUGLASS, et al., Appellants, v. EDWARD F. WINSLOW, CHARLES BARD, STEPHEN A. LATHROP, and the N. Y., ONTARIO & WEST’N R. R. CO., Respondents.
    
      Demurrer.—Conspiracy—money had and received—conversion—what not sufficient allegations of.—Issue on demurrer—what is.
    
    The complaint alleged that the railway company, defendant, was indebted to plaintiffs in the sum of $85,000, subsequently reduced by payment to $75,000 ; that plaintiffs were persuaded by defendant Winslow, president of the company, to confide negotiations for a settlement thereof to defendant Bard; that Bard informed plaintiffs that the company would only pay $55,000, advising plaintiffs to accept the same or they would lose the whole claim; that Winslow corroborated Bard’s statements and advice, relying upon all which, etc., plaintiffs accepted the offer and gave the company a general release ; that said statements of Winslow and Bard were willfully false, and made in pursuance of a conspiracy theretofore formed among defendants to defraud plaintiffs of their balance of $20,000, and to convert it to the use of defendants ; that the company in fact allowed plaintiffs’ claim in full, defendants Winslow and Bard concealing such facts from plaintiffs ; that after the release was given, a voucher for said balance of $20,000, purporting to warrant the payment thereof to plaintiffs, was prepared or caused to be prepared by defendants, was signed, approved and audited by Winslow as president, and by defendant Lathrop as auditor of the company, for their individual purposes and in pursuance of said conspiracy, etc., and its amount was by said company paid or credited to, or divided among these defendants, or some of them, without plaintiffs’ knowledge or consent, and in fraud of their rights ; that defendants still retain the whole of said $20,000 ; that defendant corporation is insolvent, and a judgment against it worthless; and that plaintiffs have suffered damage by reason of said wrongful acts in the sum of $20,000, for which they pray judgment.
    
      Held, on separate demurrers by each of the defendants, that the charge of conspiracy must fail for want of an averment in a competent form, that the conspiracy or the acts done in furtherance thereof, resulted in a damage to plaintiffs.
    
      Farther held, that the complaint sets forth neither an action for money had and received for plaintiffs’ use, nor one for conversion, nor an action against any particular defendant.
    Whether a demurrer to the complaint should be sustained if the facts pleaded do not entitle the plaintilf to the -relief demanded, irrespective of his right thereon to other relief, queere.
      
    
    Before Van Vokst and Fbeedman, JJ.
    
      Decided December 7, 1885.
    Appeal from final judgment entered on an interlocutory judgment sustaining demurrers, and from said interlocutory judgment.
    The substance of the allegations of the complaint is as follows :
    The New York, Ontario and Western Bailway Oo. was indebted to plaintiffs in the sum of $85,000 ; plaintiffs, having wholly failed to procure the settlement and payment of this indebtedness, after protracted and persistent efforts to that end, were persuaded by the defendant Winslow (president of said company), to confide all negotiations for such settlement to defendant Bard. After some time (plaintiffs’ claim having been, by a payment on account, meanwhile reduced to $75,000), Bard informed plaintiffs that the utmost the company would pay was $55,000; and he emphasized his advice that plaintiffs should accept such settlement, by a threat that the alternative would be the probable loss of the entire claim ; thereupon plaintiffs made specific inquiry of defendant Winslow, and he corroborated Bard’s statements and advice ; plaintiffs believed, and acted upon the faith of these statements and this advice ; they accepted $55,000 of the company’s notes in full settlement of their claim, and executed and delivered a general release to their debtor, the company ; that the said statements of Winslow and Bard were willfully false, and were made in pursuance of a conspiracy theretofore formed . among the defendants, the ultimate object of which was to defraud plaintiffs out of this very balance of $20,000, and to convert it to the use of the defendants ; the company did, in fact, allow plaintiffs’ claim at its full amount, but the knowledge of such allowance was suppressed and concealed from plaintiffs by Winslow and Bard, and plaintiffs were given the false information aforesaid ; and, after plaintiffs had executed and delivered the general release above mentioned, a voucher for the unpaid balance of $20,000, purporting to warrant the payment thereof to plaintiffs, was prepared by the defendants, or at their instance, was signed, approved and audited by Winslow, as president, and by Lathrop, as auditor of the company, for their individual purposes, and in pursuance of said conspiracy, &c., and its amount was, by said company, paid, or credited to, or divided among, these defendants, or some of them ; that all this was done without plaintiffs’ knowledge or consent, and in fraud of their rights ; that defendants still retain the whole of the $20,000, and plaintiffs have received none of it; that the corporation defendant is insolvent, and a judgment against it would be worthless ; and that by reason of the wrongful acts of the defendants in the premises, plaintiffs have suffered damages in the sum of $20,000, for which they pray judgment.
    The defendants severally demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    These demurrers were sustained, under the decision and opinion of Sedgwick, Oh. J., as follows :
    “ On demurrers to a complaint, the issue is not whether there are stated in the allegations of the complaint facts sufficient to make some cause of action. It is whether the complaint alleges facts sufficient to sustain the judgment demanded by the complaint. If such a demurrer be overruled, and judgment for plaintiff directed, the plaintiff can have no other kind of judgment than such as the complaint demands.
    “The complaint demands a money judgment, following the averments ‘ that, by reason of the wrongful and fraudulent acts of defendants in the premises, plaintiffs have sustained loss and injury, to their damage,- $20,000.’ The learned counsel for plaintiffs, on this argument, concedes that the plaintiffs are not entitled to recover as upon a breach of contract.
    
      “ The complaint avers that the defendants combined and conspired, and did certain acts in furtherance of that combination and conspiracy. To sustain the action it was necessary to aver in a competent form that the consequence of the conspiracy, or of the acts, was a damage to the plaintiffs. The complaint avers that, on, etc., ‘ a conspiracy or combination had been formed, and then existed, between these defendants, the ultimate end and object of which was fraudulently to obtain possession of said sum of $20¿ 000, the property of the plaintiffs, and to convert the same to the use of the defendants or some of them.’ Let us assume that the complaint alleges that the defendants did certain acts in futherance of the conspiracy, which tended to the accomplishment of the object of the conspiracy. There would still remain to be averred that some or all of the defendants, the conspirators, did obtain possession of plaintiffs’ money, and did convert it to their, the defendants’, use. If they did not, there was no damage.
    “On this subject, the averments are, that, ‘after the execution and delivery by plaintiffs of the receipt and general release aforesaid, and on, etc., these defendants or some of them, made, or caused or procured to be made, a voucher in the form required by said company, for the payments of money to contractors and others, purporting to warrant and justify the payment to plaintiffs of the sum of $20,000 on account of one million yards of cubic hard-pan excavation on the line of said (Middletown Branch;’ that defendants Winslow and Lathrop, using their respective official positions aforesaid for their individual purposes, and in aid and furtherance of the ends and objects of the conspiracy or combination aforesaid, affixed their respective official signatures to the said voucher, as approving and auditing the same, and thereupon the- said sum of $20,000 was, by said company, paid or credited to, or divided among these defendants or some of them.’
    “ It is very doubtful that the complaint shows that the plaintiff was the party defrauded in this transaction and that the company was not; but the immediate and not doubtful point is that the complaint does not show that the company ever parted with any money, or that any of the defendants received money from the company for the use of the plaintiffs. It is not said that the company paid over money for the use of the plaintiffs, or even gave a credit to their use. It is consistent with the complaint that the company gave the defendants, or some of them, a certain credit; that is, have become debtors to the defendants or some of them. That fact is not damage, or cause of damage, to the plaintiffs. Ifc has not lessened or impaired any property right of plaintiffs, or affected any cause of action that the plaintiffs might have had before the alleged crediting.
    “ It is conceivable that, at the time of the transaction, the company was solvent, and it may be assumed that practically the acts of the individual defendants have led to the plaintiffs being kept without knowledge of the real fact, until the company has become insolvent. The matter involved in such a supposition cannot be examined here, for the complaint does not make such a case. There is nothing equivalent to an averment, as a matter of existing fact, that the plaintiff could have collected his claim at the time when the fraudulent voucher was made, and the company credited the defendants, or some of them, with its amount. There is no room for inference from the fact of the company having $20,000, because that amount may have been only credited. The averment on the subject is, that at the time of making the complaint, the company ‘is insolvent.’ This prevents an inference of an earlier insolvency—especially one extending back indefinitely.
    “Of course, I do not intend to pass upon the sufficiency of allegations that would make the supposed case to constitute a cause of action.
    “ The demurrer is sustained, with leave to amend upon payment of costs of demurrer, and in case of no amendment, judgment is ordered, dismissing complaint, with costs.”
    
      W. R. Beach, for appellants.
    I. This action is maintainable under the present pleading, as an action on the case for damages resulting from a conspiracy to defraud.
    II. As matter of law, we are not limited to the form of action which the pleader apparently contemplated, but may maintain the suit under any other name or form, to which the facts pleaded are appropriate, and in which we can properly claim a money judgment. A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever (Marie v. Garrison, 83 N. Y. 14 ; Pierson v. McCurdy, 61 How. Pr. 134; Graham v. Camman, 13 Ib. 360 ; People v. Mayor, 17 Ib. 56 ; Spear v. Downing, 22 Ib. 30; Mackey v. Auer, 8 Hun, 180; Emery v. Pease, 20 N. Y. 62 ; Hale v. Omaha Nat. Bank, 49 Ib. 626).
    III. The complaint states facts sufficient to constitute causes of action other than for damages for a conspiracy to defraud, and in which the plaintiffs are entitled to a money judgment as prayed. (1.) A cause of action for conversion may undoubtedly be maintained under the allegations of the complaint (Gordon v. Hostetter, 31 N. Y. 99 ; Heine v. Anderson, 2 Duer, 318 ; Farrington v. Payne, 15 Johns. 431; Zabriskie v. Smith, 13 N. Y. 330 ; Marie v. Garrison, 83 Ib. 14, 23; Ward v. Forrest, 20 How. Pr. 465 ; Ladd v. Moore, 3 Sand. 589 ; Moses v. Walker, 2 Hilt. 536 ; Ward v. Forrest, 20 How. Pr. 465). (2.) The complaint contains facts sufficient to constitute a cause of action for money had and received (Long v. Russell, 13 J. & S. 434; National Trust Co. v. Gleason, 77 N. Y. 400 ; Horn v. Town of New Lots, 83 Ib. 100).
    
      That the complaint sounds in tort, is no obstacle to the maintenance of the action. Plaintiffs may, if they, so elect, waive the tort and amend their prayer for relief,.! at the trial (Gordon v. Hostetter, 37 N. Y. 99 ; Byxbie v. Wood, 24 Ib. 607 ; Wright v. Hooker, 10 Ib. 51).
    
      Shearman & Sterling, for respondents Bard & Wins-low ; John B. Kerr, for respondent Lathrop ; P. B. McLean, for the railway company, respondent, and Thomas Q. Shearman and Everett P. Wheeler, of counsel.
    —I. <£ Where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint ” {Code, § 1207). Upon the argument of this appeal, therefore, the question is not whether the plaintiffs might be entitled to some relief upon the allegations of the complaint, but whether they are entitled to the relief demanded or any portion of it.
    II. The only injury which the plaintiffs claim to have suffered is in their being induced by fraud to execute a release of a claim for $85,000, in consideration of a payment of $65,000. But a release obtained by fraud is void, as a matter of course ; and as it is distinctly charged that the railway company was a party to the scheme of fraud by which this alleged release was obtained, it is no release ; and the plaintiffs can, upon their own showing, bring an ordinary action of contract against the railway company, and recover the full amount due them, without regard to the release. A release thus utterly void cannot be made the ground of a claim for damages. No injury has been suffered; and, therefore, no damages can be recovered (Dung v. Parker, 52 N. Y. 494; Wemple v. Hildreth, 10 Daly, 481; Schwenk v. Naylor, 50 Super. Ct. 57; Post v. Lyke, 18 Week. Dig. 385 ; Taylor v. Guest, 58 N. Y. 262 ; De Graw v. Elmore, 50 Ib. 1). Even if the release had been valid, yet the subsequent act of the company in making out a voucher in favor of the plaintiffs for the amount, was equivalent to a waiver of this release, and entitled them to recover upon that voucher. The act of the defendants Winslow and Lathrop, therefore, in making out that voucher, was a favor to the plaintiffs, instead of an injury, and cannot possibly constitute any ground for this action.. The allegation that the railway company has paid to “ some of the defendants ” $20,000, which it owed to the plaintiffs, is entirely immaterial. For all that appears by the complaint, the railway company has paid this money to itself ; and this does not in the slightest degree bar the plaintiffs from recovering the amount. But even if the money had been paid to the other individual defendants, the case would not be altered. If A. owes B. $20,000, he can never cancel the debt by paying it to O. ; B. can sue and recover without the slightest regard to this pretended payment.
    III. The complaint does not sufficiently connect the defendant Lathrop with any of the acts of the other defendants to justify his being made a defendant.
    TV. The plaintiffs cannot sustain this action against the railway company upon the ground of the original debt. This action is not founded upon contract. It is expressly put upon the sole ground of fraud. The contract is stated only as matter of inducement. Even if all the facts were set forth in the complaint which would have entitled the plaintiffs to a recovery under the contract, yet they could not be allowed so to recover in this action, because the two forms of action are entirely inconsistent with each other; and the plaintiffs have elected to rely on the fraud and not on the contract (Walter v. Bennett, 16 N. Y. 250 ; Barnes v. Quigley, 59 Ib. 265 ; Ross v. Mather, 51 Ib. 108 ; De Graw v. Elmore, 50 Ib. 1). Even if the action could bo treated as one founded upon contract, yet the complaint does not allege facts sufficient to sustain any claim on contract. All that it alleges is that the railway company was justly indebted to the plaintiffs in the sum of $93,000, on account of work performed by the plaintiffs for the company, under a contract between the plaintiffs and the company in and about the construction of the company’s railway. These are mere conclusions of law, and do not constitute a cause of action.
    
      
       Willis v. Fairchild, 51 Super. Ct. 405.
    
   By the Court.—Freedman, J.

Although, in the opinion of the court below, the rule applicable to the determination of such demurrers as were interposed in this action, was stated perhaps in terms too broad, yet in fact the demurrers were correctly disposed of.

The charge of conspiracy must fail for want of an averment in a competent form, that the conspiracy, or the acts done in furtherance thereof, resulted in a damage to the plaintiffs.

And there being no allegation that the company paid over money for the use of the plaintiffs, or even gave a credit to their use, and the allegation that “the sum of $20,000 was, by said company, paid or credited to, or divided among these defendants, or some of them,” being in the disjunctive and alternative, thus including the company as a defendant in the charge of having received the money or credit, or part thereof, the complaint, especially in view of the separate demurrers filed by the defendants, sets forth neither an action for money had and received for plaintiffs’ use, nor one for a conversion of plaintiffs’ money or property, nor an action against any particular defendant.

. The judgments appealed from should be affirmed, with costs.

Van Vorst, J., concurred.  