Platt v. Stout

14 Abb. Pr. 178 | N.Y. Sup. Ct. | 1862

Balcom, J.

complaint shows, that prior to the 14th day of Hay, 1860, the defendant was in possession of and claimed to hold and administer the office of chamberlain of the city and county of Hew York. That on or about that day, under and in pursuance of the laws of the State of Hew York, Hathan C. Platt was duly appointed to fill such office, and was constituted thereby the chamberlain of the city and the county of Hew York, in place of the defendant; and that Nathan C. Platt thereupon duly made and executed the official bond, with the sureties, and took the oath of office required by law; and after that date, and until on and after the 7th day of June, I860,, was entitled to hold and administer the said office, and to receive the fees, emoluments, and commissions appertaining thereto. That the defendant, with notice of the above facts, wrongfully and unlawfully usurped, and continued during the time aforesaid to exercise and perform the duties of said office, and to receive the emoluments, fees, and commissions thereof. That during that time the defendant, as the pretended chamberlain of the city and county of New York, collected and received $200,000, and paid $198,000 thereof over to the treasurer of the State; and as such pretended chamberlain retained $2,000 of said $200,000, as fees, which belonged to Nathan C. Platt, as chamberlain of said city, who, as such chamberlain, was entitled to collect and receive said $200,000, and retain $2,000 thereof, according to law, as his fees, on paying the $198,000 residue over to the treasurer of the State. That the defendant retained said $2,000, as fees and commissions, and appropriated the same to his own use; but that in fact the same were retained by the defendant for the use and benefit of Hathan O. Platt as such chamberlain. That said Platt, before the commencement of this action, duly assigned to the plaintiff the above-mentioned claim, demand, or cause of action against the defendant ; but that the defendant, though frequently requested to pay said $2,000, fees and commissions, to the plaintiff, has refused so to do. The plaintiff* demanded j udgment in his complaint against the defendant for $2,000, besides interest thereon and costs.

The only ground of demurrer alleged by the defendant is, that the complaint does not state facts sufficient to constitute a cause of action.

If the allegations in the complaint, as to the manner Hathan C. Platt was appointed chamberlain, are so general that the plaintiff could have been required to make them more definite and certain on motion, still they are sufficient to show that Platt was legally appointed to that office; and they are also sufficient, when the objection thereto is taken by demurrer. (See 12 N.Y., 433; 5 Abbots' Pr., 481.)

The meaning of the complaint is, that the defendant wrongfully claimed to he the chamberlain of the city and county of Mew York from the 14th day of May, 1860, until the 7th day of June in that year; and as such chamberlain, during that time, improperly received and retained $2,000, fees and commissions pertaining to that office, which belonged to Mathan C. Platt as chamberlain, and which he was wrongfully prevented from receiving by the defendant; and that the plaintiff has purchased and become the owner of the demand therefor against the defendant, and that the latter refuses to pay the same to the plaintiff.

If Nathan O. Platt had died, the claim or cause of action for the fees and commissions in question would have survived him; and he could therefore assign the same to the plaintiff, and the latter, as assignee thereof, can sustain this action for such fees and commissions in his own name. (See 22 Barb., 110; 12 N.Y., 622.)

It is laid down by Comyn, that “ if a man receive the profits of an office upon pretence of a title, an indebitatus assumpsit lies by him who has the right to them, as for money had and received to his use.” (See 1 Com. Dig., 287, ed. 1824, title, Action upon the case upon assumpsit; 6 Mees. & W., 639; 6 Term. R., 681; 1 Scott, 539.) And I do not doubt that, an action is maintainable to recover from a party who has wrongfully received the fees of an office, which the plaintiff holds or is entitled to hold, the amount of such fees.

For the foregoing reasons I am of the opinion that the plaintiff’s complaint states facts sufficient to constitute a cause of action. The demurrer to the same must therefore be overruled with costs; but the defendant may answer the complaint on payment of the costs occasioned by the demurrer.