
    William Gauld, Resp’t, v. Julius Lipman et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed December 22, 1892.)
    
    Honey had and beceived—Equitable assignment oe eund.
    Defendants became obligated to advance moneys in instalments to one H., who gave plaintiff orders on them, which they agreed to pay out of certain instalments, but subsequently refused to pay on demand being made. Held, that if the amount was due at the time under the builder’s loan contract the orders amounted to an equitable assignment of the fund to that extent, and an aclion for money had and received would lie therefor.
    (Ehrlich, Oh. J., dissents.)
    Appeal from judgment in favor of plaintiff entered .upon verdict.
    
      C. E. L. Jelliffe and George W McAdam, for app’lts; Jacob Fromme, for resp’t.
   Fitzsimons, J.

The appellants were obligated to advance to one Hamilton, who was building houses, a sum of money payable in instalments when said buildings reached certain stages in the course of their erection.

Hamilton gave plaintiff two orders, each one dated 29th September, 1891, directed to defendants to pay him $1,000; these orders they agreed to pay as follows: One for $500 when the ■eleventh payment became payable under a certain building loan contract, and the other one for $500 when the last payment under ■said contract was due. On September 19, 1892, plaintiff demanded payment of said $1,000 from defendants, which was refused.

This action was then commenced, which resulted in a verdict dor plaintiff by direction of the court for $1,000, both parties having moved for a verdict.

If, on September 19, 1892, when the demand for said $1,000 was made, defendants owed that amount under their builders’ loan ■contract to Hamilton, then the orders given by him to plaintiff •operated as an equitable assignment of his claim against defendants to that extent. Lawrence v. Fox, 20 N. Y., 268. There was sufficient evidence to justify the trial justice in deciding that such a sum was due Hamilton at that time, and we are not inclined to ■disturb that finding; that being so, this action was properly brought.

An action for money had and received may be brought where a person holds in his hands money to which another is equitably ■entitled.

This form of action is the one adopted by common law courts to enforce an equitable obligation.

The scope of this remedy has been gradually extended to embrace many cases originally cognizable only in a court of equity.

Wherever one person has in his hands money which he cannot •conscientiously retain from another, the latter may recover in this form of action. Roberts v. Ely, 113 N. Y., 128-131; 22 St. Rep., 185.

The motion made by both sides for a verdict entitled the trial justice to direct a verdict as he did.

No error was committed, and the judgment must be affirmed, with costs.

Newburg-er, J., concurs.

Ehrlich, Ch. J.

(dissenting.)—The action for money had and received is equitable in its nature, and maintainable wherever the plaintiff is ex aequo et bona entitled to the money claimed, Chapman v. Forbes, 123 N.Y., 532 ; 34 St. Rep., 351; yet it is founded on the theory that the defendant has received money which, of right, belongs to the plaintiff.

There is no evidence that the defendants ever received any moneys, to or for the use of the plaintiff, to which these principles can be applied.

I gather from the proofs, that the defendants made a building loan contract with one Hamilton, by which they were to advance him money as certain buildings in course of erection progressed, and the orders drawn by Hamilton on the defendants, were accepted by them payable when the eleventh payment became due under the loan contract.

The complaint being for money had and received, omitted all allegations touching the progress of the buildings or that the eleventh advance had become due, so that the defendants could not take issue in respect to these material matters.

To recover, the plaintiff was obliged to prove facts not alleged, and while this may be done in the action where a defendant receives money which equitably belongs to a plaintiff, I do not think the rule can be extended to a case where a defendant never received money to and for the use of another, but merely agreed, as in this ease, to advance certain money of his own.

The defendants objected all the way through the case to the proofs offered under the complaint, insisting that they must conform thereto, and that as the allegation did not conform to the proofs, they were not admissible.

The objection was in each instance overruled, as the action was not technically one for money had and received.

I think the exceptions to the admission of the evidence well taken, and that the action should have been on the transaction, alleging it in the manner in which it was required to be proved.

This conforms to the rule laid down in Riggs v. Chapin, 27 St. Rep., 268, as well as in the recent case of Shrimpton v. Dworsky, decided by the common pleas, general term, 49 St. ■ Rep., 129.

For these reasons, the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellants to abide the event.

Judgment affirmed, with costs.  