
    Louisa Hoff, as Administratrix, Respondent, v. Jean Coumeight, Appellant.
    (New York Common Pleas
    General Term,
    November, 1895.)
    A defendant cannot be heard to Complain on appeal that the recovery waé upon a, cause of action not alleged in the complaint, - where he failed to-object tó the admission of - evidence as to' such substituted' cause of action. ; .
    A Gomplaiht alleging that the defendant, between certain dates, came into possession of a savings bank book belonging to the plaintiffs intestate, . and between said dates drew from said deposit, wrongfully obtained. , possession of and converted to his own use a portion of the amount on. deposit, is insufficient to show ,a conversion of the hank book' or of' . moneys belonging to plaintiff or her intestate, . .
    Evidence shbwing that while plaintiffs intestate was sick in a hospital,, and wholly or partly bereft of her mental powers, defendant obtained.
    ' her signature to checks to his.order, and by means thereof obtained moneys from the savings bank,- is sufficient to show a conversion of such' checks, and a demand for their return is not essential to-the'maintenance of an action therefor.
    , Appeal from a judgment of the General Term of the Qity Court of New York, which affirmed a judgment for the plaintiff gendered at Trial Term upon a1 verdict in- her favor. . Action to recover damages in conversion.
    
      Joseph O. JRósenhaum, for appellant,
    . K. G. JKudlich, for respondent.
   Bischoef,; J.

The action was in.conversion,, and at the trial, before any evidence was taken, the defendant’s counsel moved the.dismissal of the complaint for insufficiency in sub- ' stance. The' motion was denied and the complaint was not thereafter amended.

We think that the exception to the ruling presents error for which the judgment rendered at Trial Term of the court: below would have to be reversed but for the waiver and substitution of a cause of action differing from the one attempted, to be alleged in the complaint and hereinafter referred to.. Baylies Trial Pr. 169, and cases collated.

It was alleged in the complaint that the' plaintiff’s intestate had on deposit in the Manhattan Savings Institution in the City of Hew York the sum of three hundred and fifty-four Ifáy ($354.72) dollars, under the name of Philibertha Bailly, and on which deposit she received and held a bank book,, issued by said bank under said name; ” further, that between the 15th da^r of September, 1892, and the 22d day of Hovember, 1892, at the City of Hew York, the defendant came into possession of the said bank book, and between said days, drew from said deposit, wrongfully obtained possession of and converted to his own use the sums so on deposit in said bank (excepting the sum of nine dollars) to the damage of intestate of three hundred and' forty-five ($345.00) dollars.”

Viewing the complaint in either aspect, the allegations, were insufficient to show a conversion of the bank book or of moneys belonging to the plaintiff, or her intestate.

It was not alleged that the defendant tortiously secured possession of the bank book, in which event an allegation of demand and refusal of its return would have been unnecessary. Powell v. Powell, 71 N. Y. 71; Hovey v. Bromley, 85 Hun, 540; Hayes v. Mass. Mut. L. Ins. Co., 1 L. R. A. 303,307, and cases collated in note; Cooley Torts (2d ed.), 530, 531. In the absence of an allegation to the effect that such possession was tortiously acquired, however, a cause of action in conversion was not- apparent without an allegation of the defendant’s refusal to return the bank book after due demand therefor. Hall v. Robinson, 2 N. Y. 293; Tripp v. Pulver, 2 Hun, 511; 5 Am. & Eng. Ency. of Law, “ Demand,” subt. “ Trover,” 5281 Ho such demand and refusal were alleged.

With regard to the moneys which the defendant was alleged to have withdrawn from thé Manhattan Savings Institution, the complaint not oitiy failed to show the .right of the plaintiff,, or of her intestate, to the, possession thereof, but it affirmatively appeared that neither of said persons was entitled to the possession of such moneys, yet the plaintiff’s right to the possession of the thing alleged to have been converted is a constituent of a valid cause of action in conversion. Deeley v. Dwight, 132 N. Y. 59 ; Clements v. Yturria, 81 id. 285; Kerner v. Boardman, 14 N. Y. Supp. 787. The moneys deposited by the plaintiff’s intestate became the property of .the bank, her relation to the bank in respect to those moneys being that of creditor. Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; 2 Am. & Eng. Ency. of Law, “Banks and Banking,” subt. Depositors and Customers,” 93, and« cases in notes. Hence, if the defendant wrongfully secured possession of moneys from the bank, the latter and not the plaintiff or her intestate were primaa faoie entitled to the return thereof.

■ Without objection, however, the plaintiff was permitted to introduce evidence which was abundantly to the effect that while the plaintiff’s intestate was confined to her cot in the hospital of the “ Societe Francaise de Bienfaisancé,” stricken with paralysis, and wholly or partially bereft of her mental powers, the defendant secured her signature to checks to his order and aggregating $345, bf means of which' he obtained that amount from the Manhattan. Savings Institution for the account of the plaintiff’s intestate. That the procurement of the checks under the circumstances mentioned was a fraud upon the intestate, their possession by the defendant tortious ab initio, and the receipt of their amount from the bank to the detriment of the intestate a conversion of the checks, are self-evident propositions. . .Dnder the authorities herein-before referred to, therefore, a demand for the return of the' checks was not essential to a sufficient cause of action; and, having consented to the litigation of the substituted cause of action,- such consent' being inferable from the omission to object to the proof thereof, the defendant will not, on appeal, be heard to complain that the recovery was upon a cause of action which was not alleged in the complaint. Knapp v. Simon, 96 N. Y. 284; Frear v. Sweet, 118 id. 454. As to the weight of the evidence the judgment of affirmance of the court below is conclusive upon us. Meyers v. Cohn, 4 Misc. Rep. 185.

Viewing the action as having proceeded' for the conversion of the checks, the trial justice properly refused the request of the defendant’s counsel to charge that no conversion was shown. Other .exceptions to rulings which are urged on this appeal do not present sufficient merit to require discussion.

The judgments of the Trial and General Terms of the court below should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur. •

Judgments of the Trial and General Terms affirmed, with costs. 1  