191 A.D. 424 | N.Y. App. Div. | 1920
The pleadings consist of a complaint and an answer which puts in issue the material facts alleged. The plaintiff alleges that on or about the 8th of May, 1917, it was instructed by V. Lo Faro & Company, of Genoa, Italy, to pay to the defendant for the account of said company, upon the delivery to it by defendant of shipping documents covering the shipment to Genoa of 100 tons of caustic soda, a sum equal to $26 for each 100 kilograms of the said soda, amounting in all to $26,608.67; that on or about May 23, 1917, defendant delivered the shipping documents to the plaintiff and the plaintiff “ thereupon paid to the defendant by mistake ” a sum equal to $30 for each 100 kilograms of said soda, amounting in all to $30,702.27; and that the plaintiff has duly demanded repayment of the sum of $4,093.67, “ so paid under mistake,” but that no part of the same has been repaid and judgment is demanded for that amount. The learned counsel for the plaintiff attempts to sustain the complaint on the theory that it is for money had and received. It is unnecessary to consider or to decide whether on a transaction such as is disclosed by the allegations of the complaint, a recovery could be had on the theory of money had and received by the defendant to the use of the plaintiff if the plaintiff had simply alleged that at the time and place specified the defendant received the amount in question to the use of the plaintiff, for the complaint shows what the transaction was which the plaintiff claims gives rise to its cause of action for the money as having been had and received to its use, and the transaction, as thus shown, does not support the conclusion that the money was had and received by the defendant to the use of the plaintiff. The complain tmerely shows that the plaintiff paid more to the defendant for the shipping documents than it was authorized by the Italian
It follows that the order should be reversed, with ten dollars costs and disbursements, and the defendant’s motion for judgment on the pleadings dismissing the complaint granted, with ten dollars costs, but with leave to plaintiff to amend on payment of said costs.
Clarke, P. J., Smith, Page and Merrell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend on payment of said costs.