
    CATHARINE ANN McCLUNG, as Administratrix, etc., of JOHN L. McCLUSKY, Deceased, Respondent, v. MARY A. FOSHOUR AND BRIDGET T. FOSHOUR, Appellants.
    
      A judgment cannot be granted upon a different came of action from that stated in the complaint.
    
    Upon the trial of this action, in which the complaint Stated a cause of action for money had and received by the defendants to the use of the plaintiff and the answer was a general denial, evidence was given showing that the defendants, in pursuance of a contract made with the plaintiff, received certain moneys belonging to the estate of the deceased person, of which the plaintiff was subsequently appointed administratrix, in satisfaction of certain claims of the defendants against the deceased. The referee found that the contract under which the plaintiff permitted the defendants to receive the money was without consideration in law; that the plaintiff in making it was acting under the influence of the defendants and their advisers, and that said agreement was not her own act and will; that it was invalid, and directed a judgment to be entered in her favor.
    
      Held, that the referee erred in so doing as the recovery was upon a claim in equity to procure relief against fraud or mistake or both, an entirely different cause of action from that stated in the complaint and inconsistent with it.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee for $3,557.65 damages and costs.
    Tbe action, commenced October 11, 1886, was in form tbe ordinary common law action for money bad and received by defendants to tbe use of plaintiff. Tbe defense was that tbe.money alleged in tbe complaint to have been received by defendants to tbe use of plaintiff, was in fact paid by tbe plaintiff to them in satisfaction of claims they bad against plaintiff’s intestate for board and money loaned.
    John E. McCluskey died on tbe 20th of August, 1884, in tbe city of New York, at tbe bouse where tbe defendants, bis aunts, resided, with whom be bad bved since 1865. He left an estate, consisting of monéy, to tbe amount of $3,75 6.26, tbe bulk of which was in possession of a firm in that city in which be had an interest, smaller sums being on deposit in three savings banks. Against this estate there weye claims other than defendants’, which aggregated $533.19. On tbe 27th day of August, 1884, the plaintiff and tbe-def endants made a written agreement, which, after reciting tbe death of McCluskey, intestate, tbe fact that.the' plaintiff was bis sister and only next of kin, tbe value of tbe estate and tbe fact that tbe defendants bad certain claims against it, amounting in tbe aggregate to $3,096, set forth that in consideration of tbe defendants becoming sureties of tbe plaintiff, as administratrix, their claims should be immediately paid, tbe balance to be retained by tbe plaintiff as her absolute property, tbe debts and funeral expenses of tbe intestate to be paid by the defendants out of tbe money received by them. On the next day (twenty-eighth) tbe plaintiff was appointed administratrix by tbe surrogate of New York. On tbe same day tbe defendants received tbe amount of their claims, as specified in tbe agreement, and subsequently tbe defendants paid claims against tbe estate, aggregating, as above stated, $533.19.
    
      D. M. De Witt, for tbe appellants.
    
      William Lounsbery, for tbe respondent.
   LaNdoN, P. J.:

We think the plaintiff failed to establish the case stated in the complaint. Tbe complaint states a cause of action at law for money bad and received by tbe defendants to tbe use of tbe plaintiff. Tbe answer is a denial. Tbe evidence showed that tbe defendants, in pursuance of a contract made with tbe plaintiff, received certain moneys in satisfaction of certain claims of tbe defendants. It, therefore, appeared that tbe defendants received tbe moneys, not to tbe use of tbe plaintiff, but to their own use. Tbe case stated in tbe complaint therefore failed. But tbe referee found that tbe contract under which tbe plaintiff permitted tbe defendants to receive tbe money was without consideration in law; that the plaintiff, in making it, was acting under tbe influence of tbe defendants and their legal advisers; and said agreement was not of her own act and will, and that it was invalid. He refused to find that no undue influence or coercion was practiced to induce her to perform tbe agreement after it was made.

Tbe recovery was upon an entirely different cause of action from that stated in tbe complaint, and inconsistent with it. Tbe case discloses that it was an essential and necessary part of the plaintiff’s case to show, and her evidence tended to show; that she made a contract with tbe defendants, and then, in pursuance of that contract, paid tbe defendants tbe money she now seeks to recover, but that tbe contract was made and its terms performed under such circumstances as amounted to a fraud on her. Tbe plaintiff having performed tbe contract, bad no relief at law against her acts under it and acquiescence in it. It was necessary for her to avoid tbe legal effect of her own acts. Thus her complaint should have been in equity to procure relief against fraud or mistake, or both. When a plaintiff invokes equity, in order to establish an affirmative cause of action, be must set forth in bis complaint the facts upon which be bases bis claim to equitable relief. This is enjoined by tbe requirement of the Code that the complaint must contain “ a plain and concise statement of the facts constituting each cause of action.” It is enjoined by numerous autkorites. (Bailey v. Ryder, 10 N. Y., 363 ; Rome Exchange Bank v. Eames, 1 Keyes, 588; Truesdell v. Sarles, 104 N. Y., 164; Arnold v. Angell, 62 id., 508.)

The action in equity proceeds upon the theory that no adequate remedy exists at law; the action at law proceeds upon the theory that no relief in equity is needed. There are indeed cases in which it may be uncertain whether legal or equitable relief ought to be granted, like specific performance, but even in such cases the relief must be consistent with the complaint.

In the present case the complaint, being at law, implies that the plaintiff, in order to make out her case in the first instance, does not need to impeach the contract or its performance upon equitable grounds. Her recovery implies the impeachment of both upon equitable grounds. Hence the cause of action stated and the cause of action Upon which recovery is had, are inconsistent with each other.

It may not be improper to add that if the plaintiff had made out a prima facie case at law, and the defendants had pleaded and proved the contract and its performance as new matter constituting a defense, then the plaintiff, without further pleading, unless a reply had been ordered (Code Civil Pro., § 516), could have assailed the contract and its performance upon equitable grounds (Id., 522), and if upon such grounds the defense had been overcome, the prima facie case first made would remain intact and a recovery should follow.

The case made by the evidence was not merely an immaterial variance between pleadings and proof, but an entire failure of proof. If the plaintiff made out any right to recover, it was not in the case she had before the court.

Judgment reversed, referee discharged, new trial granted, costs to abide the event.

Pish and Parker, JJ., concurred.

Judgment reversed, referee discharged, new trial granted, costs to abide event.  