
    ANNIE M. B. HALSEY, Individually and as Executrix, Respondent v. THE TRADESMEN’S NATIONAL BANK OF THE CITY OF NEW YORK, IMPLEADED, &c., Appellant.
    
      Equitable action—as to changing after trial into an action at law and thereupon rendering judgment as if the action were one at law—Judgment so rendered, when not sustainable.—Exception to denial of general motion 
      
      to dismiss made at the close of all the evidence, raises these questions on appeal.—Demand of jury not' necessary.—Action for money had and received is an action at law.—To such an action when brought to recover back money voluntarily paid by mistake, notification of the mistake and demand of payment are prerequisite.
    
    An equitable action based on allegations of fraud, deceit, deceitful influence, collusion, conspiracy and misleading, and praying for an account-, ing and payment to plaintiff of whatever might be found due, cannot after its trial at special term as an equity action, he changed into an action at law.
    A judgment in such an action as in an action at law, dependent on facts not alleged in the complaint, and as to which no issue was raised, no finding made, and no trial had, cannot be sustained.
    These points may be raised on appeal under an exception to the denial of a general motion to dismiss made at the close of all the testimony. It is not necessary that the motion should be stated to be made on these grounds. Nor is it necessary that defendant should demand a jury.
    An action for money had and received to and for the use of the plaintiff, is an action at law on contract triable before a jury.
    Where money is voluntarily paid by mistake, a notification of the mistake and a demand of payment back are prerequisite to an action for money had and received to recover it.
    Before Freedman and O’Gorman, JJ.
    
      Decided May 7, 1888.
    Appeal from a judgment rendered at special term in an equity action.
    The facts sufficiently appear in the opinion.
    
      Niles & Falls, attorneys, and W. W. Niles of counsel for appellant; on the questions considered in the opinion, and those decided, argued:—
    I. An action based on fraud must fail absolutely when the allegations of fraud are not sustained by the proof.
    People v. Dennison, 84 N. Y., 272 ; Barnes v. Gingley, 59 Ib. 265; Degraw v. Elmore, 50 Ib. 1; Dudley v. Scranton, 57 Ib. 428; Langdell on Equity Pleading, § 63; Stevens v. Mayor, 84 N. Y. 296; Bailes’ Trial Practice, p. 215, and cases there cited; Marshall v. Fowler, 7 Hun 237. The failure of proof herein was fatal.
    II. A judgment must he “ consistent with the case made by the complaint, and embraced within the issue.” Code, § 1207. “ When a complaint states only an equitable cause of action which the plaintiff fails to establish, the cause will not be held to enable the party to make out a legal claim.” De Buissierre v. Holladay, 4 Abb. N. C. 111; Hennequin v. Butterfield, 43 Super. Ct. 411; Oakville Co. v. Double Pointed Tack Co., 105 N. Y. 659; L. I. Bank v. Boynton, 105 Ib. 656. “ When a party alleges a cause of action of an equitable nature he must prove one, so far as the question of a trial by jury is concerned, and he cannot escape such tribunal by alleging an equitable cause of action and wholly failing to prove it, and obtain a trial by the court of a common law action arising out of the transaction.” Peckham, J., in Brinckerhoff v. Bostwick, 105 N. Y. 572. If an action in equity may be thus converted into one for a sum of money only, the constitution and §968 of the Code which guarantee a jury trial may be easily avoided by an astute pleader, by pleading facts and demanding relief in equity and at the trial proving facts, constituting an action at law, as described in § 968 of the Code; for whether a cause is to be tried by the court or a jury is determined upon the pleadings. In the case at bar defendant was deprived of any opportunity to insist on a jury trial, as on the pleadings it appeared that only issues of an equitable nature were to be litigated. The court in the first set of findings gave equitable relief, and a year or two later against defendant’s protest ordered a common law judgment simply.
    
      M. A. Kellogg, attorney, and Nelson Smith of counsel for respondent, on the questions considered in the opinion, and there decided, argued:—
    
      I. The appellant did not take the point on the trial that the gravamen of the action was fraud, and hence, cannot take it on this appeal. The rule is well settled that whenever an objection is made it should be accompanied with a statement of the ground on which it is based, and if no such statement is made, the objection will be unavailing. Fountain v. Pettee, 38 N. Y. 184; Valton v. Nat. F. Assurance Co., 20 Ib. 32. And where the objection is accompanied by a statement of the ground on which it is made, no other ground of objection will be listened to on the appeal. Newton v. Harris, 60 N. Y. 345; Blossom v. Barrett, 37 Ib. 434; Durgin v. Ireland, 14 Ib. 322.
    H. While the names of actions no longer exist, their substance does. We still have the action at law and suit in equity ; but it is not necessary for the pleader to declare that his complaint is in either form. It is only necessary that it should contain facts constituting a cause of action, and if such facts establish a title to the equitable interposition or aid of the court, it will be given by judgment in the same manner as it formerly would have been granted by decree, so the complaint may be framed with a double aspect. Stevens v. Mayor, 84 N. Y. 304. In that case the plaintiff, as alleged in his complaint, had been induced by fraud to execute a deed, and he brought a suit to recover the damages. It was purely a legal action, and having been beaten on the facts as respects the fraud, the judgment was against him.
    HI. In addition to this, all parties, including the court, treated this action as of an equitable nature on the trial. The defendant did not demand a jury, and did not suggest that he was entitled to a jury, or that the action was anything except of an equitable nature.. It is too late to make that objection noiv.
   By the Court.—O’Gorman, J.

This is an appeal by the defendant bank, from a judgment against it. for $17,946.42, entered on the decision of the court at special term, as money received by defendant for the benefit of the plaintiff.

The plaintiff brought her suit as executrix of Anthony Halsey, her deceased husband, and also as sole legatee under his will. The deceased had been for many years before his death cashier, one of the stockholders, and a director of the bank. At the time of his decease he was insolvent, being indebted to the bank in a large amount, and indebted also to some others who have recovered judgments against his estate. He had been in the habit of keeping all his valuable securities, and papers of value, in a safe in the bank building, and they were all in that safe at the time of his death. Among these securities were some, conceded to have been assigned by him to the bank, as collateral security for a part of his indebtedness. The proceeds of the sale of these securities by the bank amounted to $45,991.50, and about these securities, and the proceeds thereof, there is no question in this suit. The contention here is only as to the other securities of the deceased, which he kept in the same safe, and among his papers, which were not formally assigned by him to the bank in writing, but which the bank claimed to have been nevertheless held by him for the bank, and as security for payment in full of his debt to it.

This suit was brought in equity against the bank and against William M. Hoes, for some time the plaintiff’s attorney, and she alleged in her complaint, as the basis of her action, that by reason of the fraud and deceit of the defendants, colluding and conspiring together, she was induced to place, or allow to remain, or be placed, with her consent, in the possession of the bank, valuable securities and money belonging to her late husband, contrary to her duty, and her interests as executrix and sole legatee ; and she prayed for an accounting by the defendants of all moneys received by them, and that they pay the same over to her with interest.

The defendants answered separately, each denying all fraud, collusion, or conspiracy, and at the trial, the suit against the defendant Hoes, was dismissed with costs.

The bank in its answer, alleged that Halsey, at the time of his death owed the bank upwards of $80,000, being money which he had gotten from it while he was its cashier; that all moneys of the deceased in pas-session of the bank, which were the subject of this action, were paid by the plaintiff, voluntarily, to the bank on account of that indebtedness; and that after crediting the estate of Halsey with all such moneys, there still remained due and unpaid, by him to the bank, over $30,000.

The plaintiff’s charges of fraud, falsehood, and undue influence on the part of the bank, were unsupported by evidence, and her cause of action against it, as set forth in the complaint, was not sustained.

At the close of the evidence, the counsel for the bank moved for dismissal of the complaint. This motion was denied and exception taken, and therein, in my opinion, the learned trial judge erred.

The court permitted the plaintiff to amend the complaint on the settlement of the case. To this, also, exception was taken by counsel for the bank. It does not appear, however, that the amendment allowed, alleged any specific ground of a claim for equitable relief, other than such as had been set up in the original complaint. (Case, folios 549 and 550.)

The court found, as a conclusion of law, that the bank received the sum of $11,971.14, for the use of the plaintiff as executrix, and that she was entitled to recover that sum and interest, and judgment was entered against the bank for that amount with costs.

The attitude of the plaintiff, at the close of the case, was this: Her suit had been in substance and form, a suit in equity, triable before a judge sitting at special term. The only grounds on which she based her claim to equitable relief, were fraud, conspiracy, and deceitful influence, misleading her, by which she had been induced to pay into the hands of the bank, money, to the possession of which the bank was not entitled, and she, as executrix of her late husband, was entitled. The gravamen of the suit was fraud. No other cause of action was alleged in the complaint. Failing to sustain the charge of fraud, her whole case, on her complaint, failed.

The plaintiff’s claim for equitable relief on these grounds having failed, the question arises, on what finding of facts or evidence, the said conclusion of the court, in favor of the plaintiff, depends. It may be presumed to be on the claim of mistake on the part of the plaintiff, as to a material matter of fact, but that she was so mistaken, is not found by the court as a fact.

However, accepting that as the basis of her claim, as presented in its new aspect, and as her new cause of action, the question remains whether she should have been allowed thus to shift her position, and abandoning her suit in equity, have judgment, as in an action at law, in assumpsit, on contract, dependent on facts which she never alleged in her complaint, as to which no issue was raised, and no finding has been made, and, in fact, no trial was ever had.

If plaintiff, in a suit in equity, failed to sustain some of the charges on which she rested her claim to equitable relief, yet if the pleadings or the evidence disclosed other grounds for equitable relief, the court would no doubt be justified in granting it. But in the case at bar, the charges of fraud, etc., having failed, neither the plaintiff’s complaint nor the evidence disclose any ground for equitable relief, and the suit in equity wholly fails, and an amendment “ changing substantially the claim,” from one appealing to a court of equity, to one in assumpsit,” on contract, triable, of right, by a jury, should not have been allowed. Code Civil Procedure, § 723.

There is no doubt that an action for recovery of money received by defendant for the benefit of the plaintiff is an action at law, on contract, and triable before a jury. Chitty on Contracts, ed. 1874, 898; Code Civil Procedure, § 968; National Trust Co. v. Gleason, 77 iV". Y. 403.

The court in this case has not found that the' plaintiff was misled by any mistake of fact, and it is by no means clear that the evidence would have supported such a finding.

It appears from the evidence that in claiming and holding this money, the bank has been innocent of any improper act or intent, and was as much misled by mistake of fact or of law, as the plaintiff could have been. She voluntarily placed the money in the hands of the bank, for the purpose of paying her husband’s debt to the bank in full. The bank received it for that purpose and intent, and holds it now, subject to the decision of the court, when legitimately obtained, as to its rights and duties as pledgee or otherwise, on issues properly framed. In such cases, the plaintiff in an action for money received for her benefit, must first make demand of payment before bringing action. South wick v. First Natl. Bank, 84 JSí. Y. 430.

Looking at this case in all its aspects, the plaintiff was not, in my opinion, entitled to recover, and the judgment. should be set aside, and a new trial be ordered, with costs to abide the event of the action.

Freedman, X, concurred.  