
    SHEPHERD F. KNAPP, as Receiver, &c., Plaintiff and Respondent, v. WALTER ROCHE, Defendant and Appellant.
    There being many points of evidence in conflict, in the case at bar, the well grounded rule that upon such evidence the verdict of a jury is conclusive is applicable, and leads to an aiBrmahce of the order denying the motion for a new trial.
    The same rule applies to like questions of fact, reviewed on the appeal from the judgment, and the verdict of the jury should be sustained.
    The objection that other parties should have been made parties defendant which was overruled, was correctly disposed of. The transaction which fixes the liability of the defendant, was an individual one, and not connected with the persons named. The act complained of was not performed collectively with the other persons named, and therefore, the action was properly brought against the defendant alone.
    The following two questions in the case, and those only, reviewed fully:
    ■First. Whether the action, which is for the conversion of the
    ■ “ funds, money and property ’’ of the Bowling Green Savings Bank, can under the evidence be maintained. The allegation in the complaint is: that “ the defendant wrongfully and uvlawjully, tool• 
      
      and converted to Ms oion use the funds, money and property of- the bank. ” The proofs show that certain checks belonging to the bank were appropriated by the defendant to his own use. The defendant’s counsel claimed that this allegation, in form and substance, made an action which would formerly have been denominated “ troverf and that such an action does not lie, and can not be maintained, for the conversion of checks, which are mere choses in action. Held, allegations in a complaint do not necessarily give form to the action, for that is not essential. If a cause of action is stated it is sufficient, and it is immaterial whether it be such as was formerly a simple assumpsit, or a tort, or of an equitable or legal nature. Actions are no longer known by names; all are actions; it is only the causes, or facts .constituting the causes, of action that are different; and the only inquiries are: dó the facts stated constitute a cause of action of any kind? and do the proofs sustain the facts as stated ? If the proof sustains a cause of action, which can be found in the complaint, it is enough, although inappropriate language may have been used in stating it. In either aspect, whether for a conversion, or for money had and received, the proofs were sufficient to maintain the action (Gordon v. Hostetter, 37 2f. Y. 99; Sternberger v. McGovern, 15 Abb. Pr. N. S. 257).
    Second. Whether there was error in the allowance of the amendment to the complaint at the close of the trial ?
    The complaint alleged the taking and , using of checks, the property of the bank, by the defendant, of the value of sixty-six thousand two hundred dollars, for which sum and interest judgment was demanded. The plaintiff proved checks taken, &c., to the amount of sixty-six thousand two hundred dollars, and then offered proof of another check of eleven thousand two hundred and eight dollars and thirty cents, which was objected to generally, but the court overruled the objection and admitted the proof, and evidence was given in respect to this check by both parties, the defendant not claiming to be surprised, was unprepared to meet the issue, and at the close of the trial, on motion of plaintiff, the amendment of the complaint was allowed by the court, by which the amount for which judgment was demanded was increased, so as to cover this check, on the ground that both parties had given evidence in relation to the same.
    
      Held, that there was no wrong done or error committed in allowing the amendment, and its allowance was within the discretionary powers of the court at the trial, and can not be reviewed. (For the cases considered in the decision of this point, see the opinion of the court.)
    
      Before Mokell, Ch. J., and Freed max and Sedgwick, JJ.
    
      Decided June 1, 1874.
    ' Appeal from judgment and order.
    The action was by the receiver of the Bowling Green Savings Bank.
    The complaint alleged as follows
    “ The plaintiff further shows, upon information and belief, that the said defendant, Walter Roche, was vice-president of the said Bowling Green Savings Bank from the date of its incorporation until its dissolution by the judgment of the supreme court as aforesaid, and that the said defendant during said period and while he was such vice-president, wrongfully and unlawfully took and converted to his own use, funds, moneys an<| property of said bank amounting, to and of the value of sixty-six thousand and two hundred dollars ($66,200).
    
      “ Wherefore the plaintiff claims judgment against said defendant for said sum of sixty-six thousand two hundred dollars ($66,200) besides interest and costs.”
    The defendant denied that he was vice-president oi the Bowling Green Savings Bank up to the time of its dissolution by the judgment of the supreme court, on-the contrary, the defendant alleged that he ceased to be such vice-president in the month of November, 1871.
    And the defendant denied each and every other allegation in the said complaint contained.
    And, for a supplemental answer to the complaint, the defendant averred:
    That as to a part of the cause of action set forth in the complaint, the defendant says that Henry Smith and Reeves E. Selmes were, and are, jointly liable with the defendant therefor.
    . And for a further and separate defense, the defendant alleged on information and belief, that after the commencement of this action, and in or about the month of March, 1872, the plaintiff, for a good and valuable consideration to him paid, settled, compromised and discharged the alleged claim or cause of action set forth and stated in the complaint or a part .thereof, with Smith and Selmes, or one of them, and that the plaintiff did thereupon remise, release and forever discharge the said Smith and Selmes, or one of them, as well as this defendant, of and from all and every claim and demand which the plaintiff had against said Smith and Selmes or this defendant, for or by reason of the alleged matters set forth in the complaint in this action, and that thereupon the said Smith and Selmes, or one of them, as well as this defendant, became and was wholly released and forever discharged therefrom.
    The action was tried by the court and a jury.
    Evidence was given tending to show, in substance, that during all the time defendant was vice-president of the Bowling Green Savings Bank he was also vice-president of the Guardian Savings Institution, located and doing business in the city of New York.
    Between June 22 and July 9, 1870, the Guardian .Savings Institution loaned the Bowling Green Savings Bank the sum of fifty-eight thousand one hundred and twenty-five dollars.
    On October 31, 1870, and November 25,1870, checks amounting to forty thousand dollars were drawn on the funds of the Bowling Green Savings Bank, and given to defendant to pay on account of this indebtedness of the Bowling Green Savings Bank to the Guardian.
    The defendant took these checks, and, instead of paying them on the amount owing the Guardian Savings Institution, deposited them to his individual credit in the Guardian Savings Institution.
    
      Between November 18, 1870, and June 19, 1871, the defendant, by means of checks, took of the funds and property of the'Bowling Green Savings Bank thirty-six thousand two hundred and eight dollars and thirty cents, and used them in Wall-street in speculation in the stock of the Hannibal & St. Joseph Bailroad Company.
    On June lti, 1871, Boche loaned Selmes by an official check, the sum of one thousand two hundred dollars of the money of the bank without security.
    These various sums make up the aggregate of plaintiff’s claim of seventy-seven thousand four hundred and eight dollars and thirty cents.
    It also appeared that a suit was pending by the receiver of the Guardian Savings Bank against the Bowling Green Savings Bank to recover the said loan of fifty-eight thousand one hundred and twenty-five dollars.
    The defendant moved to dismiss the complaint on the following grounds:
    
      First, that there was a defect of parties defendant, so far as the claim on account of the stock transactions go ; second, and so far as the other transactions go, all the grounds of liability had been removed by the proof, leaving nothing in the case but a matter of one thousand two hundred dollars ; and third, as to that it appears that the whole benefit of it went to Selmes, and therefore he is a necessary party ; and fourth, that there was no evidence of any conversion of money by the defendant.
    The motion was denied, and the defendant then and there duly excepted.
    The defendant gave some evidence which, it was claimed, tended to show that forty thousand dollars of the amount alleged to have been taken by the defendant, had been paid to the Bowling Green Bank. And he gave other evidence which raised a question for the jury.
    
      At the close of all the evidence, the plaintiff asked to amend the complaint by adding in the eleven thousand two hundred and eight dollars and thirty cents, making the demand seventy-seven thousand four hundred and eight dollars and thirty cents, with interest. The defendant objected, the court granted the motion, and defendant excepted.
    The amendment was allowed by the court on the ground that both parties had given evidence relating to the check.-
    Defendant moved to dismiss the complaint, on the ground that there was no evidence to show the conversion of any tangible thing ; which motion was denied by the court, and defendant excepted.
    The defendant’s counsel made numerous requests to the court to charge the jury, which were refused. They were little more than amplifications of the grounds for the motion to dismiss the complaint.
    The court submitted the questions of fact to the jury, and the defendant excepted to parts of the'charge, and also to the refusals to charge.
    The jury rendered a verdict for the plaintiff for the sum of ninety-four thousand five hundred and seventy-three dollars and ninety cents, being the amount of plaintiff’s claim, with interest by way of damages, for which amount judgment- was duly entered on' Márch 26, 1874.
    A motion for a new trial on a case and exceptions, and on the ground that the verdict was against the weight of the evidence, and that the damages allowed vere excessive, was'made and denied.
    The defendant appealed from both judgment and rnler denying motion for new trial.
    
      John F. McGowan, attorney for defendant, aplaut, Mr. James Q. Carter, of counsel.
    
      Mr. Jof-.-íj £7. Dedin, for plaintiff, respondent.
   By the Court.—Mohell, Ck. J.

I do not deem it necessary to review the voluminous evidence in this ease, in a written opinion. I have examined it with care, and can find no reason for disturbing the verdict. It presents many points in conflict, and the case is brought within the well-grounded rule, that upon such evidence, the verdict of a jury is conclusive.

Upon the facts, therefore, I am of the opinion that we should sustain the verdict. And this disposes of the grounds for the motion for a new trial, and leads to an affirmance of the order denying that motion.

And so in regard to the alleged restoration of a part of the money to the Bowling Green Savings Bank. The testimony of the plaintiff’s witness was that the forty thousand dollars was a payment on account of an existing indebtedness to the Guardian Savings Bank ; and that of the defendant, that it was a loan to that bank. Upon the finding of the jury on this evidence, depended the success or failure of that part of the defense. It. was submitted by the court, as a question of fact upon the evidence, with .instructions (substantially), that if it was found to have been a loan, and was paid to the Bowling Green Bank, the amount should be deducted from the recovery. The jury have found against the defendant.

The objection that other persons should have been made parties was correctly disposed of. The transaction which fixes the liability of the defendant was individual, and not connected with the persons named. If the moneys of the bank, in respect to the sums claimed in this action, were taken or misappropriated at all, it was the individual and personal act of the defendant, and not collectively with other persons; and the action is, therefore, properly against him alone.

Two questions, however, are of sufficient importance to deserve a more extended examination. The first is whether the action, which is.for the conversion of the “funds, moneys and property” of the bank, can, under the evidence, be maintained.;—and the second, whether there was error in allowing the amendment of the complaint.

• The allegation in the complaint is that the defendant, wrongfully and unlawfully, took and converted to his own use the funds, money and property of the bank ; and the proofs show that certain checks belonging to the bank were appropriated by the defendant to his own use. The allegation in the complaint, it is contended,, makes this what would formerly have, been denominated an action of trover, and that such an action does not lie for the conversion of checks which are mera dioses in action.

The first answer to this objection is, that allegations in a complaint do not, necessarily, give form to the action, for form is not essential. If a cause of action is stated, it is sufficient, and it is immaterial whether it be such as was formerly a simple assumpsit, or a tort; or of an equitable or legal nature. Actions are no longer known by names. All are actions, only the causes, or the facts constituting the causes, of action are different; and the only inquiry is, do the facts stated constitute a cause of action of any kind ? If, however, the proof does not sustain the facts as stated, it is a variance, and may require a dismissal of the action, or, in proper cases, an amendment may be allowed.

The words wrongfully and unlawfully took and converted to his own use, would, perhaps, have been inappropriate under the old system in an action of assumpsit for money lent, or had and received ; and the proofs in this case would, perhaps, have failed to show such a cause of action; and it is probable the court would have been obliged to nonsuit the plaintiff.' .But under the present mode of procedure, the employment of particular words in stating the cause of action, will not so characterize the action, and conclude the party, that he must prove the cause of action precisely as stated. If the facts constitute a cause of action of any Mnd, it will be sufficient, without regard to the manner of stating them. And if the proof sustains a cause of action which can be found in the complaint, it is enough, although inappropriate language may have been used in stating it.

Stripped of mere verbiage, the cause of action stated in the complaint, is, that the defendant, entrusted with certain checks of the bank, instead of paying the debt of the bank with them, or with their proceeds, appropriated the amount to his own use. Upon these facts being established, the plaintiff could- recover as for money had and received, or for money lent and advanced. For even if the taking was tortious, the tort' could be waived, and a simple assumpsit maintained.

But I think that even if this is to be regarded as an action for the actual or technical conversion of the plaintiff’s property, it can be sustained under the proof.

The defendant was an officer of the bank who was forbidden, by its charter, from borrowing the funds of the bank, or in any manner using the same. In his capacity as such officer, the defendant, without the knowledge or consent of the bank, and in violation of its expressed prohibition, used the funds of the bank.' That was wrongful and unlawful, and, in judgment of law, was a conversion to his own use of the funds of the bank, for which an action would lie, if a bank check is the subject of a conversion ; and would lie irrespective of the prohibition in the charter.

The allegation is that the defendant took and con verted the “ property ” of the bank, and a bank check is property. It is a chose in action, and like an inland bill of exchange, or a promissory note, which is property, may be converted to the use of another (Murray v. Burling, 10 Johns. 172; Case v. Mech. Bkg. Ass., 4 N. Y. 166 (which was an action for the conversion of a banJc checlc, and although the question was decided against the plaintiff on the merits, no doubt was suggested that such an action would not lie), and see Decker v. Matthews, 12 N. Y. 313 ; Luckey v. Gannon, 1 Sweeny, 12).

In either aspect, therefore, whether for a conversion or for money had and received, the proofs were sufficient to sustain the action. And courts are bound to apply to actions the liberal rules of construction which have taken the place of the harsher and stricter ones which heretofore prevailed. In Gordon v. Hostetter (37 N. Y. 99), the action was for the conversion by a clerk pf the money of his employers, and the court of appeals, after examining the question whether an action for conversion would lie, and deciding that it would, say: “Even if we had arrived at a different conclusion on this point, we should hold the verdict good, as for moneys had and received, on the waiver by the plaintiffs of the tort alleged. It is true, that under ordinary circumstances, the refusal to pay over-money, had and received, to the use of another, is not in law a conversion. It does not, however, follow from this, as a counter proposition, that, under our present system of pleading, a party who has alleged and proved facts, entitling him to judgment as for moneys had and received, will be barred from that relief by his failure to prove other and further allegations, which would have entitled him to a more stringent remedy. The material averments of the complaint in this regard, were fully sustained by the prqof.” In Sternberger ». McGovern, a recent decision of the court of appeals (15 Abb. Pr. N. S. 257), the action was for the specific performance of a contract for the exchange of land. The special term granted the relief demanded, but the general term, reversing the judgment, held; it was not a case for equitable relief, but the subject of a common-law action for damages for the breach of the contract. ■and dismissed the complaint. This, the court of appeals held, was erroneous. That as the facts stated were sufficient to sustain a common-law action, the plaintiff had the right to a trial of that cause of action, notwithstanding he had failed to sustain his claim for equitable relief, and therefore the complaint should not have been dismissed. This decision is founded upon the ■change produced by the code in authorizing the uniting of legal and equitable causes of action in the same complaint, and fully recognizes the rule of liberal construction of pleadings, which, in furtherance of justice, should be allowed to prevail under the present system.

The next question is, was there error in allowing the complaint to be amended ? And this is resolved into a question of power only. If the court was authorized to allow the amendment, then its allowance was discretionary, and the decision can not be reviewed.

The power to allow amendments at the trial, is less than is possessed by the court at special term (Brown v. Leigh, 49 N. Y. 78). And no amendment can be allowed at the trial, which substantially changes the claim or'defense (Code, § 173). But the court at special term is not restricted, and a new cause of action, of the same class, may be set forth.

The amendment was authorized in this case, if it did not substantially change the plaintiff’s claim.

The action was for appropriating the property of the bank, which consisted of checks, which had come to the defendant’s possession as an officer of the bank, and which he had taken to his own use. The complaint alleged the taking, and that it was of the value of sixty-six thousand two hundred dollars, for which, sum and interest, judgment was demanded. There was no specification in the complaint of the property taken, but on the trial the plaintiff proved that several cheelcs came to the defendant’s possession, which he collected, and appropriated the proceeds. The plaintiff proved checks taken, to the aggregate of sixty-six thousand two hundred dollars, and then offered another and further check for eleven thousand two hundred and eight dollars and thirty cents, which would increase the liability to seventy-seven thousand four hundred and eight dollars and thirty cents. This check was objected to, generally, but the court overruled the objection and admitted the proof.

It is clear that no valid objection could be made to the proof. Under the complaint, proof of any number of checks taken was admissible ; and the only question which could be raised, was, to the right of the plaintiff to recover more than the sum of sixty-six thousand two hundred dollars and interest, as demanded in his complaint.

But both parties litigated this part of the case, and evidence was given by each side in respect to it, the defendant not claiming to be surprised or unprepared to meet the issue.

At the close of the testimony the application was made to amend the prayer for relief,, by increasing the amount for which the plaintiff demanded judgment. It was allowed, on the ground, as the case shows, that both parties had given evidence relating to the check.

It is pretty well settled that after verdict an amendment of this character can not be allowed, except upon terms of a new trial and payment of costs (Dox v. Dey, 3 Wend. 356 ; Bowman v. Earle, 3 Duer, 691 ; Corning v. Corning, 6 N. Y. 97). But the want of power seems to be confined to amendments after verdict, leaving it ibefore verdict to be governed by the rules applicable to other amendments ; when, if there has been no injustice done, or surprise liad, it is usually and properly allowed.

In Bedford v. Terhune (30 N. Y. 453), the action was to recover for the use and occupation of premises, and the defendant showed a lease under seal. The court allowed the complaint to be amended at the trial, by conforming it to the facts. The court admitted that this case carried the right of amendment to a great length; but that there should be much liberality in giving effect to the code. And reference is made to vases where amendments have been allowed at the trial. To Robinson v. Wheeler (25 N. Y. 252), where the defendant was charged with having set fire to a wood shed, and it was shown to have been the result of negligence. To Byxbie v. Wood (24 N. Y. 607), where fraud was alleged, and not proved. And to Harpending v. Shoemaker (37 Barb. 270), where the action was for money had, and received ; and it was proved on the trial, that the defendant had unlawfully taken and converted the plaintiff’s property, sold it and received the avails.

Johnson v. Brown (57 Barb. 118), sustains this right of amendment before verdict, upon the authority of Bedford v. Terhune (sup.), and Vibbard v. Roderick (51 Barb. 616).

In all these cases the power is fully recognized, and its exercise is regarded as wholly discretionary.

There was no wrong done in allowing the amendment in the case before us. The defendant was not surprised, nor could he well be, by the proof of the additional check; and he did not claim to be unprepared to meet it. Nor did he ask to have any terms imposed. The amendment was, therefore, proper, and the objection to it furnishes no ground for reversing the judgment.

I have examined the numerous other exceptions taken by the defendant at the trial, and, without reviewing them at length, hold none of them to have been well taken.

The judgment and order should be affirmed, with -costs

Freedman and Sedgwick, JJ., concurred.  