Wolff v. Flatow — 27 N.Y. St. Rep. 177

Majority

p. 177

Isaac Wolff, App’lt, v. Edward Flatow et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

1. Money had—Pleading—Demurrer.

The complaint alleged that one B. agreed to sell F. a lot for a certain price, he depositing with B. $500 to he credited on the price if the sale was carried out and to he returned if the title failed. That thereafter F. assigned said agreement to K., who was ready to take title hut B. could not give it. That thereafter F. assigned his interest in the $500 to defendants who took the title and that B. allowed to them the $500 originally paid. Also, the further allegation that 2ST. had assigned to plaintiff all rights in the premises And in the $500. On demurrer, Held, that the complaint did not state facts constituting a cause of action.

2. Same.

B. has not paid the defendants $500, so that sum cannot he said to have heen money had and received to the use of plaintiff. If B. has chosen to give defendants credit for $500, that does not concern plaintiff. If B. has not paid the $500, and plaintiff is entitled to it, he can recover it of B.

Appeal from a judgment sustaining a demurrer to the complaint, interposed upon the ground that it does not state facts sufficient to constitute a cause of action.

Adolph Cohen, for app’lt; David Leventritt, for resp’ts.

In brief, the allegations of the complaint seem to be that in July, 1888, one Charles Brown entered into a written agreement with one Harris Flatow for the sale of certain real estate in the city of New York, Flatow depositing with Brown the sum of $500, to be applied upon the purchase price if Flatow completed the purchase, and to be returned to Flatow if the title failed.

That in August, 1888, Flatow sold and assigned said agreement and all rights thereunder to one Jette Nathan. That Brown was unable to give title as agreed; that Nathan was ready and willing to carry out the agreement; that in October, 1888, Flatow assigned his interest in said $500 to the defendants, and Brown was induced to allow to them said $500 on the purchase price of the premises. In other words, that Nathan having refused the title to the property in question, the defendants took said title, and Brown allowed to them the $500 which had been paid upon the purchase price.

The complaint contains the further allegation that Nathan duly sold and assigned to the plaintiff all her rights to the premises, and to the $500. The defendant demurred to this complaint,

p. 178

which demurrer was sustained, and from the judgment thereupon entered this appeal was taken.

If Brown had paid to the defendants the $500 in question, it might, perhaps, be claimed upon the part of the plaintiff that he had. a right to recover that sum upon the ground that the $500 was money had and received to the use of the plaintiff or his assignor. But such is not the fact. The defendants have never received the $500. Brown has only chosen to credit them with $500 on account of a sum due from them to him, Brówn. With this plaintiff has nothing to do.

If Brown has not paid the $500, and the plaintiff is entitled to it, he can recover the same from Brown.

Under these circumstances, no cause seems to have been set out in the complaint against the defendant, and the demurrer was rightly sustained.

The judgment appealed from must be affirmed, with costs.

Daniels and Barrett, JJ., concur.