Levine v. Klein

113 N.Y.S. 95

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 30, 1908
• Status: Published

Opinion

SEABURY, J.

The judgment must be reversed because the motion which the defendant made at the close of the plaintiff’s case should have been granted. The action is for money had and received. The plaintiff testified that she gave $500 to her husband, and that two months later she saw her husband give the defendant $500, and that she demanded this sum from the defendant, but the defendant refused to pay it. This was all the evidence offered when the plaintiff rested, and the defendant moved to dismiss the complaint.

This motion should have been granted. The evidence is wholly insufficient to support a judgment against the defendant. It was not shown that the money delivered to the defendant was the property of the plaintiff, nor were the circumstances under which the plaintiff claims to have delivered this money to her husband, shown, or under which her husband delivered the $500 to the defendant. The mere fact that the plaintiff gave her husband $500, and that, two months later, she saw him give the defendant $500, will not entitle her to a judgment against the defendant for money had and received.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.