
    Kasryel H. Sarasohn, Respondent, v. William Miles, Jr., and Another, Appellants.
    Judgment affirmed, with costs*—Appeal from a judgment entered upon a verdict of a jury and from an order denying a motion for a new trial.—
   Hatch, J.:

The testimony we think authorized the submission of this case to the jury upon the precise theory and charge upon which it was submitted. While it is true that the plaintiff had . his negotiations for the purchase of the property with Livingston, yet it is also true that after the statement was made by Livingston that, it would be' necessary to pay the nephews of the owners $1,000 through the “defendants as agents of the owner, the

plaintiff, Livingston and Heifer met for the purpose of consummating the arrangement, and at that time and in the presence of Heifer, who sat at the table when the conversation was had, Livingston stated in detail the circumstances which rendered necessary the payment of $1,000 in order to get the nephews to consent to the sale. Presumably Heifer heard the conversation, for, when the plaintiff suggested as to what would be the result if the owner was not able to sign the deed, Heifer said: '‘ I guarantee you. I will give you a receipt for it.” This receipt was produced at the trial and was in terms for $775, money to be returned if the owner did not give good title, and was signed by the.defendants; and Livingston stated at the same time, in the defendants’ presence, that plaintiff would have to give the money to the boys, evidently meaning that the defendants would give it to the nephews, and in several forms the plaintiff reiterates this statement upon the occasion of the interview when he gave the money to the defendants. And further he states," Mr. Heifer did not tell me that I ought to get a receipt for $775. I asked for it. I said, If you give that money to the boys and in two or three months at the time of taking the deed Mrs. McCauley will not be able to sign the contract where shall I get my money?’ One of the gentlemen said 4 Suppose I guarantee you the money.’ I asked for a receipt and he gave me a receipt.” And when the defendants took the money it was said that it was to go to the boys. It is suggested that the representation was made exclusively by Livingston and that the plaintiff relied upon him. The plaintiff so testified; but when Livingston made the representations it was in the presence of the defendants, as the evidence clearly shows, and as the result of such statement the plaintiff paid the money to the defendants at the time they were made. The representation of Livingston, therefore, became the representation of the defendants as well as Livingston’s; and when the plaintiff testified that he relied upon the representations of Livingston, it follows as a legal conclusion that they were clearly the representations of the defendants, as they were present and heard them, acquiesced therein and received the benefits derived therefrom. The evidence, therefore, established the representation as the representation of the defendants and reliance thereon by the plaintiff sufficient at least to uphold the verdict. It is suggested that only one of the nephews was called to testify that he received none of the money, and, therefore, that it does not appear but that the money was paid to the other; but the testimony of the defendant Heifer is that the money was divided between. Livingston and the defendants, although the defendants were paid a commission for effecting the sale by the owner. The evidence in this respect was sufficient to" establish a conspiracy between Livingston and the defendants, and the proof without contradiction establishes that they got and divided $775 as the fruits of the false representations. The verdict of the jury has established that the representation under which the money was received was false. The case, therefore, as presented shows that $775 was successfully extracted from the plaintiff by a successful fraud, and it ought not to receive the sanction of the court. So far as the pleading was concerned, whether it be treated as an action for false and fraudulent representation, or for money had and received, is of little consequence. The pleading is certainly good for money had and received, and this is sufficient to support the judgment. The motion to compel an election was properly denied when made, and as it was not renewed, no legal error resulted. (Tuthill v. Skidmore. 124N. Y. 148.) The judgment should be affirmed, with costs. Patterson and Rumsey, JJ.. concurred; Ingraham and McLaughlin, JJ., dissented.

Ingraham, J.

(dissenting): I [think that the Verdict was entirely unsupported by the evidence. There is no question but that the plaintiff paid his money voluntarily in pursuance of an arrangement made with Livingston, whom he had employed to purchase this property, and to recover it from these defendants the plaintiff must prove that they made to him false representations upon which he relied and by which he was induced to pay to the defendants the money which he seeks to recover. No fraudulent representations were made by either of these defendants. Livingston was the plaintiff’s representative, and, if the plaintiff’s story is true, is the one who made the representations, and the one who defrauded him. Plaintiff expressly testified that- he relied upon the statements of Livingston, and stated: 441 do not chink I ever spoke with Miles and Heifer because I had my full confidence in Mr. Livingston that he would not cheat me. Mr. Heifer took the money, but by the table was said that money had to go to the boys. That was said by Mr. Livingston by the table. That was said by Mr. Livingston. I do not remember whether Mr. Miles or Mr. Heifer said anything about the boys. I will say Mr. Livingston did. I'am the one who told Mr. Livingston to go ahead and try to get this house. * * * I was only satisfied to give the money because I relied on what Livingston told me in regard to the nephews. I was satisfied to pay the money on account that I have full confidence and. that I am very intimate with Mr. Livingston since twenty years; what Mr. Livingston told me ¿thought it was true.” In the face of this, testimony ¿ do not see how there can be any claim against the defendants on the ground of their fraud. Plaintiff made arrangements with Livingston, based upon representations made by Livingston, and upon which he relied, and in carrying out that arrangement made with Livingston, paid to the defendants this sum of money. Defendants made no representations to him, and thus plaintiff relied upon no representations made by them, and there is not the slightest evidence to show that the defendants knew the arrangement " that was made was based upon false representations made, by Livingston. The whole charge against the defendants was that when Livingston stated to the plaintiff that this money was to go to other persons, one of these defendants was present. There is nothing to show that the defendants heard the statement or adopted it or understood that the plaintiff relied upon, it when he paid the money. They had nothing to do with the arrangement between plaintiff and Livingston, and were in no way-responsible to the plaintiff for representations made to him by his own agent, and. fiothiug from which it could be inferred that, the payment was based upon that statement. There is no evidence by which these defendants would be charged with making representations that were false and upon which the plaintiff relied, or with any-connection, with the fraud practiced by Livingston upon the plaintiff by which he was induced to part with this sum of money. There is also no evidence that the statement was false — one of the nephews was not examined. The verdict being without evidence to support , it, the motion for anew trial should have been granted. McLaughlin, J., concurred.  