18 Jones & S. 453 | The Superior Court of New York City | 1884
Lead Opinion
— The complaint shows no obligation on the part of the defendant to return the money deposited with it to the plaintiff. It does not show that the defendant, knew that the money was the plaintiff’s money, nor that it was left for the benefit of and in trust for the plaintiff. The inference to be drawn from the complaint is that the money was given to Hewitt by the plaintiff to be deposited with the
The deposit became the property of the defendant, and the defendant became a debtor to the depositor (Sims agt. Bond, 5 B. & Adol., 393; People agt. Merchants, &c., Bank, 92 N. Y., 7). This contract was made by and with consent of the plaintiff. It does not appear that the defendant refuses to perform its contract, and until it does so appear there is no cause of action against the defendant.
In Mulcahy agt. Develin et al. (17 Week. Dig., 308), cited by respondent, the complaint alleged that the plaintiff was the owner of and possessed of a certain sum of money on deposit with a third person, which sum of money in some way the defendant, without the plaintiff’s knowledge or consent, became possessed of. The general term of the court of common pleas held that a demurrer to the complaint would not lie, because the defendants by demurring admitted that the plaintiff owned and was possessed of the money that the defendant had appropriated without her knowledge and consent. In this respect the two cases differ.
This action is to be distinguished from those actions in which it has been held that whenever one man has the money of another, which he ought to pay over, he is liable in an action of assumpsit. Here, as between the plaintiff and defendant, the defendant ought not to pay over the money to plaintiff, because with plaintiff’s consent it has promised to pay to another (See Stephens agt. Radcock, 3 Barn. & Adol. 354).
Of course, if there be no cause of action stated in the complaint, the defendant is under no obligations to bring in Hewitt, as provided by section 259 of the General Savings
The judgment and order are reversed, with costs, and demurrer is sustained, with costs.
Concurrence Opinion
I concur with judge Truax in his opinion that there is no legal cause of action, but think that there would be an equitable cause of action if Hewitt were made defendant with proper allegation.
