
    William Fiss and John B. Doerr, Respondents, v. Eugene Van Schaick, Appellant.
    
      Demurrer — allegations that one agreeing to pay a fund to third persons luid a claim, against the original owner, against which it was offset, constitute no defense to an action by the third persons— what allegations are considered to be trite on a demurrer.
    
    A complaint in an -action set out three, causes of action, each representing the same demand. The first cause of action recited that “heretofore, and in September, 1896, the defendant had and received the sum of §1,345, the property of plaintiffs, which sum he' promised to pay them, but has failed to do so, although payment thereof has been demanded.” Tlie second cause of action recited the same date, and declared that “.the defendant being about to receive as attorney for one Clement Indelli a sum of money, half whereof was due to the plaintiffs, to wit: the sum of §1,345, was directed by the said Indelli to collect such sum and to pay the sum to the plaintiffs, and promised and agreed to and with the plaintiffs so to do, and was permitted by the plaintiffs to collect and receive the same, but he has failed to pay the same to the plaintiffs, although payment thereof has been demanded.” The third cause of action set forth that “between September, 1896, and June 1st, .1897, the defendant, having collected as attorney for one Clement Indelli a sum of money, whereof a part, to wit: §1,345, was due to the plaintiffs, said Clement Indelli duly assigned and transferred to the plaintiffs .said sum of §1,345, then in the hands of the defendant, of which assignment the defendant was duly notified, and which sum he thereupon promised to pay to the plaintiffs, but has failed so to do, although payment thereof has been demanded.”
    The answer denied each of the several allegations of the complaint, and alleged that “one Peter Indelli was a contractor in the city of New York, and, being in financial difficulties, transacted business through and in the name of Clement Indelli, mentioned in the plaintiffs’ complaint as their assignor.
    “II. That in October, 1896, said Peter Indelli and said Clement Indelli were indebted to the defendant and his associates in the sum of §3,500 and upwards, and that on the 8th day of October, 1896, said Clement Indelli, at the direction, and behest of said Peter Indelli, executed and delivered to this defendant, for value, an assignment in writing of all moneys due or to grow due under certain policies of insurance covering premises upon which a loss had occurred.
    “ III. That thereafter defendant did collect such moneys, but that the amount thereof was insufficient to cover said sum of §3.500, and that said Indellis are still indebted to defendant.
    “IV. That defendant has fully and completely accounted to said Clement Indel'i and Peter Indelli for all such moneys, and has their release and acquittance therefor.
    “ V. That these moneys are the same moneys referred to in each and every cause of action set forth in the plaintiffs’ complaint.”
    
      Held, that the new matter alleged in the answer was demurrable;
    That'for the purpose of a demurrer to new matter set up in an answer, all of such new matter and all the allegations of the complaint should be taken as true. . ■_
    Appeal by. the defendant, Eugene Yan Schaick, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 22d day of March, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a démurrer to'new matter set up in the answer to the complaint.
    
      Eliot Norton, for the appellant.
    
      Edward M. Or out, Paul Or out and James Oroolce Me Leer, for the respondents.
   Woodward, J.:

The complaint sets out three causes of action, the demand in each instance being for the same amount of money and representing the same demand. The first cause of action recites that “ heretofore, and in September, 1896, the defendant had and received the sum of $1,345, the property of plaintiffs, which sum he promised to pay them, but has failed to do so, although payment thereof has been demanded.” The second cause of action recites the .same date, and declares that “ the defendant being about to receive as attorney for one Clement Indelli a sum of money, half whereof was due to the plaintiffs, to wit: the sum of $1,345, was directed by the said Indelli to collect such sum and to pay the sum to the plaintiffs, and promised and agreed to and with the plaintiffs so to do, and was permitted by the plaintiffs to collect and receive the same,, but he has" failed to pay the same to the plaintiffs, although payment thereof has been, demanded.” The third cause of action sets forth that “ between September, 1896, and June 1st, 1897, the defendant, having collected as attorney for one Clement Indelli a sum of money, whereof a part, to wit: $1,345, was due to the plaintiffs, said Clement Indelli duly .assigned and transferred to the plaintiffs said sum of $1,345, then in the hands of the defendant, of which assignment the defendant was duly notified, and which sum he thereupon promised to pay to the plaintiffs, but has -failed so to do, although payment thereof has been demanded.” The defendant, answering, denies each of the several allegations, and sets up as further answering each and every cause of action in the complaint contained,” certain matters relating to the money in dispute. The plaintiffs demur to this new matter, which is much in tlie nature of an explanation of the history of the transactions mentioned in the complaint, on the ground that it is insufficient in law upon the face thereof. The demurrer was sustained at Special Term, appeal coming to this court.

It is conceded that the demurrer is good as to the first cause of action, because it is there alleged that the money belonged to the plaintiffs, and the new matter could in no wise afford a reason why the defendant should keep the property of the plaintiffs, but it is urged that as to the last two causes of action the demurrer should be overruled. Where new matter is set up in the answer all of the allegations of the complaint and the answers are to be taken as true for the purposes of a demurrer (Douglas v. Coonley, 156 N. Y. 521, 528), and we are to determine whether the matter set forth in the answer is a defense to the complaint.

The new matter alleged that “ one Peter Indelli was a contractor in the city of New York, and, being in financial difficulties, transacted business through and in the name of Clement Indelli, mentioned in the plaintiffs’ complaint as their assignor.

“II. That in October, 1896, said Peter Indelli and said Clement Indelli were indebted to the defendant and his associates in the sum of $3,500 and upwards, and that on the 8th day of October, 1896, said Clement Indelli, at the direction and behest of said Peter Indelli, executed and delivered to this defendant, for value, an assignment in writing of all moneys due or to grow due under certain policies of insurance covering premises upon which a loss had occurred.

“ III.. That thereafter defendant did collect such moneys, but that the amount thereof was insufficient to cover said sum of $3,500, and that said Indellis are still indebted to defendant.

“ IV. That defendant has fully- and completely accounted to said Clement Indelli and Peter Indelli for all such moneys, and has their release and acquittance therefor.

“ V. That these moneys are the same moneys referred to in each a.nd every cause of action set forth in the plaintiffs’ complaint.” Conceding all of these matters to be true, we are unable to discover in them a reason why the plaintiffs would not be entitled to recover under the facts which they allege in their complaint, and which are equally entitled to be considered as true. The allegations of a pleading are to be liberally construed with a view to substantial justice between the parties (Code Civ. Proc. § 519), and if the defendant in the month of September, 1896, was about to receive as attorney for one Clement Indelli a sum of money, half whereof was due to the plaintiffs, * * * was directed by the said Indelli to collect such sum and to pay the sum to the plaintiffs, and promised and agreed to and with the plaintiffs so to do, and was permitted by the plaintiffs to collect and receive the saíne,” the money came into the hands of the defendant impressed with a trust, and the fact that in the month of October, 1896, Indelli was indebted to the defendant for a larger sum does not disclose any reason why the defendant should be relieved of the obligation to pay over this money to the plaintiffs. There is no allegation that Indelli owed the defendant anything at the time the defendant was authorized to receive and pay over the money to the plaintiffs, and it is not until October that there is any claim of such indebtedness, while the complaint sets forth that the transaction out of which the defendant’s duty to the plaintiffs arose was in the month of September of the same year. ■ .

In a like manner, if the defendant; received this money as attorney for Indelli, the latter giving an assignment of the same to the plaintiffs while the money was in the hands of the defendant, he being notified of such assignment, thereupon promising to pay to the plaintiffs the money involved in this controversy, it is not clear that an assignment of the same fund to the defendant would relieve the latter of the duty of discharging the obligation to the plaintiffs, and as it does not appear that this' alleged assignment was made until the eighth day of October, it is by no means certain that it was prior to the assignment made to the plaintiffs, the- allegation of the complaint being that -1 between September, 1896, and June 1st, 1897,” the sum of $1,345, then in the hands of the defendant, as attorney for Indelli, was duly assigned to the plaintiffs, which sum the defendant promised to pay to them:

We are of opinion that the defendant, under .his denial, may establish any facts which will disprove the claim of the plaintiffs, and that the new matter has no proper place in the action.

The interlocutory judgment should be affirmed, with costs.

All concurred.

Inte7-locutory judgment affirmed, with cost's.  