
    
      ANNA J. ROGERS, Appellant, v. EDWARD SCHELL, Respondent.
    
      Money had and received—when action for will not lie.—Agreement "with mortgagors of real property to bid in on foreclosure sale and hold for their benefit, the mortgagors to assign their interest in surplus to bidder—
    . subsequent action of mortgagors to recover amount of surplus so assigned by them to purchaser.
    
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
    
      Decided December 7, 1885.
    Appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint.
    Action to recover $6,298.87, claimed to have been received by the defendant to and for the use of the plaintiff and her assignors.
    The referee found the following facts :—“In and prior to the year 1873, one John Eogers, father of the plaintiff, owned the fee of a lot lying between One hundred and eighty-second and One hundred and eighty-third streets, in the city of New York. The lot was mortgaged to the Manhattan Savings Bank. Eogers died July 17, 1871. The interest to the bank became in arrears. An understanding was had between Eogers’ family, including plaintiff, who is one of his children, and the defendant, that the latter should purchase the lot at a sale thereof to be made under foreclosure of the mortgage aforesaid, for the benefit of the Eogers family, and upon a subsequent sale of it by defendant he should give to them any excess it might bring over the amount he should advance to cover the sum due on the foreclosure decree. If he bid more than the amount of the decree, the surplus should belong to him, and Eogers family would assign their interest in such surplus to him. The defendant bid a large sum in excess of the sum of the decree, and became the owner of the property, but for the benefit of the Eogers family. The members of this family assigned to him their interest in the surplus, and upon proper proceedings he presented it to be paid to him. He still holds the lot, and has exacted rent for it. No one of the Eogers family has paid taxes upon it since the defendant purchased it, nor has he received any interest upon the sum he paid. This action is instituted to recover the surplus money so as above received by him.’’
    The referee found as conclusions of law: “That the above facts do not constitute such cause of action as is attempted by plaintiff to. be made, nor as considered in connection with the pleadings, any cause of action, and that the motion to dismiss the complaint herein should be grantedand directed judgment accordingly.
    The only exception was to referee’s conclusion of law that the complaint should be dismissed.
   The Court at General Term, said :—“ Upon the facts found by the referee, the conclusion reached by him is entirely correct. The agreement between the defendant and the Eogers family, provided, that if he should bid upon the foreclosure sale more than the amount of the decree, the surplus should belong to him. His bid was in excess of the amount of the decree ; he paid it, and received back the surplus, under the arrangement, with the consent of all. To that he was entitled. Had the property, on a re-sale made by him, realized more than he paid, together with his disbursements on account of the property, the excess would have belonged to the family. But he has not re-sold. When he does sell, the plaintiff, or others entitled to the moneys realized on such re-sale, over and above what the defendant has paid on account thereof, will be entitled to the excess.

The defendant offered, in his answer, to convey the property to any person whom the parties in interest will designate, on being reimbursed the moneys he has paid for the same. A re-sale, if desired by the parties in interest, could doubtless be reached through an action brought for the purpose of compelling it. But that is not this action.”

S. W. Fullerton, for appellant.

Ira D. Warren, for respondent.

Opinion by Van Vorst, J.; Sedgwick, Oh. J., and Freedman, J., concurred.

Judgment affirmed, with costs.  