
    James Haynes, as Executor, Appellant, v. James W. McKel, Respondent.
    (Supreme Court, Appellate Term,
    February, 1897.)
    1. Fraud — Proof of.
    Where, actual fraud is alleged, proof of constructive fraud, merely, is unavailing.
    
      2. Honey had and received — Voluntary payment.
    Where one in whose name moneys were deposited in savings bank in trust by a person since deceased, with knowledge of all the facts, delivers the fund to the executor of such person upon his claim that it was a part of the assets of the estate, and it is so accounted for and distributed by the executor without notice of any claim to the fund on the part of the cestui que trust, it cannot be recovered from him in an action for money had and received brought by such cestui que trust or her executor.
    3. Same —* Evidence.
    A mere statement that defendant asked the witness to see his wife about a certain matter is insufficient to authorize the admission of evidence as to the conversation between the witness and his wife in the absence of the defendant and his statement to his wife that defendant had made certain representations to him.
    Haynes v. McKee, 18 Mise. Rep. 361, affirmed.
    Appeal from the affirmance by the General Term of the City Court of New York of a judgment rendered for the dismissal of the complaint at Trial Term.
    Action for the recovery of a sum of money alleged to have been obtained from the plaintiffs testatrix by means of fraudulent misrepresentation.
    0. N. Boveé, Jr., and Frederick B. Campbell, for appellant.
    Frank L. Holt, for respondent.
   Bisohoff, J.

This was an action brought to recover the sum of $1,035.15, the amount of a fund at one time deposited by Alida N. King with the .Union Dime Savings Institution, and subsequently received by the defendant, the depositor’s account being entitled-: “ Alida N. King, in trust for Mary L. Haynes.”

The defendant is the personal representative of Mrs. King, the depositor, since deceased, and is sued individually by the executor of Mrs. .Haynes, also deceased,, the complaint proceeding upon allegations of deceit on the part of the defendant, whereby Mrs. Haynes was induced to indorse and transfer to him a cheque or draft for the' fund which was issued to her by the despositary institution, upon her demand, after Mrs. King’s death.

To support the allegations of misrepresentation upon the defendant’s part the plaintiff signally failed, the record being destitute of, proof in that regard (Brackett v. Griswold, 112 N. Y. 454), and for such failure the complaint was dismissed; but it is. now urged that the allegations of deceit were pleaded as matter of inducement only (Abbott’s Tr. Ev. 273), and that the cause of action -was essentially one for money had and. received by the defendant, which money, eco aequo et bono (Chapman v. Forbes, 123 N. Y. 532), he should pay to Mrs. Haynes, or her personal representative. It is further urged that, regarding the action as one upon contract, if proof of fraud was essential to the avoidance of a dismissal of the complaint under section 549, subdivision 4, of the Code of Civil Procedure, such frarid could be taken as established, constructively, through the evidence given as to the fiduciary relation maintained by the defendant, as executor of the trustee of this fund, to Mrs. Haynes, the cestui que trust.

The position assumed by the appellant is clearly untenable for the following reasons: (1) the fraud claimed to have been shown and relied on affords only ground for affirmative equitable relief which the court below, for want of jurisdiction in that regard, could not extend (10 Am. & Eng.. Ency, of Law, p. 70); (2) where actual fraud is alleged, proof of constructive fraud, merely, is unavailing (Kerr on Fraud and Mistake, Bump’s Notes, pp. 382, 383; Eyre v. Potter, 15 How. [U. S.] 42; Book 14, L. ed. 592), the recovery in every instance being required to be secundum allegata et probata (Pomeroy Remedies and Remedial Rights [2d ed.], §§ 553, etc.; Romeyn v. Sickles, 1 Silvernail Ct. App. 594); (3) no fiduciary relation subsisted, with regard to the fund in dispute, between the plaintiff’s testatrix and the defendant. The plaintiff’s claim was, and the evidence given by him tended to support it, that the trust had expired with the death of Mrs. King, and that, thereupon, Mrs. Haynes, the cestui que trust, succeeded to the legal title to the fund. Cunningham v. Davenport, 147 N. Y. 43; Chaplin on Express Trusts, 46. Obviously, if it is conceded that upon the death of Mrs. King the trust devolved upon the defendant, as her executor, the plaintiff’s testatrix was not entitled to receive the fund, and no promise -upon the defendant’s part to pay it to her could be implied. Having’ the legal title thereto no action at law was maintainable against the defendant for the recovery of the fund.

Considering this appeal, however, agreeably to the appellant’s theory with regard to the cause of action, and - aside from the allegations of deceit, and the necessity of proving them, the judgment of dismissal was proper.

It was conceded upon the trial that the. fund- was turned over to the defendant upon his claim that it constituted a part of the assets of Mrs. King’s estate; and it appeared from unchallenged evidence for the defendant thqt it was so accounted for, and distributed by him, among the beneficiaries named in the will of his testatrix, without notice of any claim to the fund on the part of Mrs. Haynes, or of the plaintiff, her executor.

At most, therefore,. it was to be said that in the transfer and receipt of the fund Mrs. Haynes and the defendant were mistaken in respect to the ownership thereof, and while, ordinarily, where the mistake was one of fact, a recovery is allowed upon the principle sought to be invoked by the appellant, the case ati bar presents a feature which precludes it. Without proof to the contrary, it was to be assumed that the defendant, in accounting for and distributing the fund, as stated, acted in good faith. The loss should, therefore, not fall upon him. The parties being in pari causa, justice is in equilibrio.- Broom’s Legal'Maxims (8th Am. ed.), 714; Massey v. Massey, 2 Hill Ch. (South Car.) 492. “H the plaintiff’s recovery would lead to a loss on the part of the defendant, then, the parties being equally innocent, that fact of itself is sufficient reason for denying the right of recovery on the plaintiff’s part.” Keener Quasi-Contracts, 91. This defense was not pleaded, yet-it was litigated by consent. Frear v. Sweet, 118 N. Y. 454. But it was conclusive from the testimony of the plaintiff’s witness, Annie Bowland, that at the time of the transfer of the fund to the defendant, as a part of the assets of Mrs. King’s estate, Mrs. Haynes was cognizant of all the constituent facts of her right of ownership. Mrs. Bowland wasi explicit in her statement that, at a conversation in her presence, Mrs. King informed Mrs. Haynes of the fact of the deposit and said that she intended the fund to belong to- her upon the former’s decease. Cunningham v. Davenport, supra. The mistake, if any, was, therefore, not one of fact, but of law, and, unaccompanied by fraud or duress, is irremediable, the transfer being regarded as voluntary under the circumstances. Silliman v. Wing, 7 Hill, 159; Flynn v. Hurd, 118 N. Y. 19; Vanderbeck v. City of Rochester, 122. id. 285.

An examination of the exceptions taken to rulings upon evidence discloses nothing calling for discussion in support of the judgment except, perhaps, in one instance.

Plaintiff, called as a witness, testified that prior to the day upon which the deposit was withdrawn, from the savings institution and transferred to.the defendant-by Mrs. Haynes, his wife, he had had an interview with the defendant and the following -questions were asked him by his counsel:

Q. What did Mr. McKee'sáy to you about that thousand dollar deposit at that time? ”

A. Well, he said he wanted to draw it out. He asked me if I would see my wife ■ about it. I said I would. I said to him when he -said he wanted to draw that money from the bank that I would See my wife. I did see my wife.’’

“ Q. Give - the conversation which you had with your wife on that subject after you had seen Mr. McKee? ” The defendant’s counsel objected; the objection was sustained, and due exception taken.

Without more particularity as to what the defendant had stated to the plaintiff for repetition to the plaintiff’s wife, the conversation called for by this question was not shown to have be'en competent evidence, as against the defendant.

The plaintiff’s-- statement to his wife that the defendant had made certain representations to him, unless founded upon proof that such was the fact, would have been no evidence to charge the defendant with having made them, and the question, therefore, sought to elicit testimony, which, while thoroughly' responsive to the inquiry in the manner framed, would have been incompetent, or, at least, might well have been so in part.

Failing the proper foundation for the question, then, the plaintiff was not entitled to the admission of 'this conversation, and the exception does not present error.

The judgment should be affirmed, with costs.

, Daly, P. J., and McAdam, J., concur

Judgment affirmed, with costs.  