Gauld v. Lipman ( 1892 )

Fitzsimons, J.

The appellants were obligated to advance to one Hamilton, who was building houses, a sum of money, payable in installments when said buildings reached certain stages in the course of their erection.

Hamilton gave plaintiff two orders, each one dated September 29, 1891, directed to defendants, to pay him $1,000, these orders they agreed to pay as follows: One for $500 when the eleventh payment became payable under a certain building loan contract, and the other one for $500 when the last payment under said contract was due; on September 19,1892, plaintiff demanded payment of said $1,000 from defendants, which was refused.

This action was then commenced, which resulted in a verdict for plaintiff, by direction of the court, for $1,000, both parties, having moved for a verdict. If, on September 19, 1892, when the demand for said $1,000 was made, defendants owed that amount under their builder’s loan contract to Hamilton, then the orders given by him to plaintiff operated as an equitable assignment of his claim against defendants to that extent. Lawrence v. Fox, 20 N. Y. 268.

There was sufficient evidence to justify the trial justice in deciding that such a sum was due Hamilton at that time, and we are not inclined to disturb that finding; that being so, this action was properly brought. An action for money had and received, may be brought where a person holds in his hands money to which another is equitably entitled. This form of action is the one adopted by common-law courts to enforce an equitable obligation. The scope of this remedy has been gradually extended to embrace many cases originally cognizable only in a court of equity. Wherever one person has in his hands money which he cannot conscientiously retain from another, the latter may recover in this form of action. Roberts v. Ely, 113 N. Y. 128-131.

The motion made by both sides for a verdict entitled the trial justice to direct a verdict as he did. Ho error was committed. And the judgment must be affirmed, with costs.

Newburger, J., concurs.