Statement of case.

Weaver v. Barden, 49 N. Y. 293; Comstock v. Hill, 73 id. 269; Haynes v. Rudd, 24 N. Y. S. C. 477; Coddington v. Bay, 5 Johns. Ch. 54; S. C., 20 Johns. 637; Stevens v. Corn. Ex. Bk., 3 Hun, 150; Fulton Bk. v. Phenix Bk., 1 Hall, 562.) The acceptors of the draft having paid it under a mistake of fact, the plaintiff, as their assignee, was entitled to recover back the amount as so much money had and received to their use. (Smith v. Macklin, 4 Lans. 51; Rider v. Powell, 28 N. Y. 316; Duncan v. Berlin, 46 id. 685; Kingston Bk. v. Eltinge, 40 id. 395; Merchants' Bk. v. National Eagle Bk., 101 Mass. 285; Appleton Bk. v. McGilray, 4 Gray [Mass.], 520; Westerlo v. De Witt, 36 N. Y. 340; Martin v. McCormick, 8 id. 331; Mills v. Alderbury, 3 Exch. 593; Chester v. Bank, 16 N. Y. 336; Lake v. Artisans' Bk., 3 Keyes, 276, 278; Canal Bk. v. Bk. of Albany, 1 Hill, 287; Goddard v. Merchants' Bk., 2 Sandf. 247; Rheel v. Hicks, 25 N. Y. 289.) The fact, that by the exercise of proper diligence the assignor of plaintiff might have avoided the error, is no defense. (Kingston Bk. v. Eltinge; 40 N. Y. 395; Nat. Life Co. v. Jones, 1 N. Y. S. C. [T. & C.] 470; Duncan v. Berlin, 46 N. Y. 685 ; S. C., 11 Abb. Pr. [N. S.] 116.) The rule that the plaintiff's recovery may be defeated by showing that the defendant has a counter equity to retain the money is not law in this State. (Canaday v. Stiger, 55 N. Y. 453.) The fact that the defendant received the proceeds of the draft in money, and that the money when so received was applied to the credit of Southworth, Thayer & Co., does not prevent the plaintiff from recovering it back, when it was paid by him to defendant under mistake, and when the defendant will not be prejudiced by canceling the credit which he has given to Southworth, Thayer & Co. (Van Allen v. Am. Nat. Bk., 52 N. Y. 8; Tradesmen's Bk. v. Chem. Bk., 1 Paige, 302; Mechanics' Bk. v. Levy, 3 id. 606; Skinner v. Merchants Bk., 4 Allen, 290; Atlantic v. Same, 10 Gray, 532.) As no question was submitted to the jury, and in the disposition of the case made at the trial all the evidence covered by the objections taken by defendant was either immaterial, or the fact was otherwise abundantly proved,

Opinion of the Court, per EARL, J.

and the result was not in any wise affected thereby, its reception, even if erroneous, is no ground for a new trial. (Sherman v. Johnson, 56 Barb. 59-62; Bennett v. Austin, 5 Hun, 536; Downe v. N. Y. C. R. R. Co., 56 N. Y. 664; Rowland v. Hegeman, 59 id. 643.) As the complaint contained all the allegations necessary, with the proof in the case, to entitle the plaintiff to recover, the allegation that the defendant agreed to apply the proceeds of the draft in a particular way may be rejected as surplusage, and does not prevent the plaintiff from recovering on the other allegations. (Byxbie v. Wood, 24 N. Y. 607-610.) The General Term had authority to conform the pleadings to the proof, and as there was no dispute in regard to the facts, and there being no evidence or pretense of surprise, its authority was properly exercised. (New Code, 723.) Any defect in the pleadings, such as is alleged, is cured by the Code (8 721, subd. 5-8). The fact that the defendant's bank was a National bank, organized under the National Banking Act, was wholly immaterial, and no defense could be based thereon, except that of jurisdiction, which is res adjudicata in this State, and which, moreover, was waived by the general appearance and answer of the defendant. (Cooke v. State Bk., 52 N. Y. 96; Robinson v. National Bk., 22 Alb. L. J. 15.)

EARL, J. The defendant claims that the plaintiff failed upon the trial to establish by proof the cause of action alleged in his complaint. To determine whether this claim is well founded, we will first see what facts were proved, and thus ascertain for. what cause of action the recovery was had, and then see if such cause of action is fairly embraced within the facts alleged in the complaint.

ton.

The material facts, as proved, are as follows: Southwick, Thayer & Co. were a firm doing business in Memphis, Tenn., and J. N. Merriam & Son were a firm doing business in BosOn the 13th day of March, 1873, George H. Thayer, a member of the Memphis firm, drew a draft upon that firm, which was accepted by them, for $2,500, payable in Memphis in forty days, to the order of the Boston firm. The latter firm SICKELS-VOL. XXXIX. 54

Opinion of the Court, per EARL, J.

indorsed the draft to F. P. Merriam, who became the owner and holder thereof, and he sent the draft to Memphis for collection. Shortly prior to the maturity of that draft A. N. Merriam, of the Boston firm, being at Memphis, was notified by the Memphis firm that probably they would not be able to pay the draft at maturity, and was asked if, in that case, they might draw on the Boston firm a new draft, the proceeds of which should be used to take up the old draft. This request was assented to on condition that they should not draw the new draft without special authority. Early in May the Memphis firm notified the Boston firm that they would not be able to take up the old draft, and requested permission to draw. Whereupon, on the fifth day of May, the Boston firm sent them a telegram, as follows: "You may draw upon us at sight for $2,500, to pay draft in our favor." On the next day the Memphis firm drew upon the Boston firm a sight draft for $2,500, payable to their own order and indorsed by them; and their book-keeper, Wiggs, on their behalf, took it to the defendant's bank, with which they had had previous dealings and an account, and asked defendant's cashier if he would discount it and let his firm check out the proceeds. This the cashier refused, but he said he would take the draft and place it to the credit of the drawers on over checks owing by them to the bank. Wiggs then consulted the drawers, and on the same day, with their assent, delivered the draft to the bank to be discounted, the proceeds to be credited to them in account, and they were thus credited. At that time the drawers were indebted to the bank in a much larger sum than the amount of the draft. The bank had no knowledge of the telegram authorizing the drawing of the draft, or of the purpose for which the drawers were authorized to draw. The bank thus became a bona fide holder of the draft for value, but not for value parted with at the time. Several days subsequently the Memphis firm drew a check on the defendant to pay the old draft, and it refused to pay the check, on the ground that their account was not then good.

After receiving the new draft and crediting its proceeds to

Opinion of the Court, per EARL, J.

the account of the drawers, the defendant sent it to its corresponding bank in Boston for collection That bank presented it to the drawees for acceptance and payment, and it was accepted May 10th and paid May 13th, and the proceeds were credited by the Boston bank to the defendant, and were by it subsequently checked out in the course of its business.

The Memphis firm was not, at the time of the negotiation of the new draft, known to be insolvent, but they became openly insolvent in the latter part of June or the fore part of July, 1873, and were subsequently put into bankruptcy. This suit was not commenced earlier than the 29th day of July. At the latter date the Boston firm and F. P. Merriam assigned all their claims against the defendant to the plaintiff.

Upon these facts the court directed a verdict for the plaintiff, and its decision was probably based upon the theory that the defendant could be charged with a wrongful conversion of the draft, or upon the theory that the drawees paid the draft under a mistake of facts. In the opinion pronounced at the General Term, the judgment entered upon the verdict was sustained upon the latter theory, and the learned counsel for the plaintiff, in his argument before us, attempted to sustain it upon both theories.

It is entirely clear that no cause of action for a conversion of the draft, or to recover back money paid by mistake, is alleged in the complaint. On the contrary, the facts alleged show that there was no wrongful conversion of the draft, and that the money was paid under no mistake of any existing facts, and no mistake is in any way alleged or to be inferred from the language used.

The complaint first alleges the making of the old draft, and that the same was owned and held by F. P. Merriam; that it had matured and become payable and had been forwarded to Memphis for collection; that the Boston firm authorized the new draft to be drawn upon them in order to provide funds necessary to pay the old draft, and agreed to pay such draft. upon condition that the proceeds should be used for that purpose only; that the new draft was thereupon drawn and deliv

Opinion of the Court, per EARL, J.

ered to the defendant, which was notified of the object and purpose for which the draft was authorized to be drawn, and for which the same was drawn, and that it received the draft and undertook and agreed to collect the same for the purpose aforesaid, and that the proceeds thereof, when collected, should be applied to the payment thereof; that the draft was accepted and paid for the object and purpose and upon the condition aforesaid, but that the defendant neglected and refused to apply the amount paid upon the old draft, although requested so to do; that the draft remains unpaid and that J. N. Merriam & Co. and F. P. Merriam have sold and transferred the same and the moneys paid thereon to the plaintiff, together with all claim and cause of action against the defendant upon or by reason thereof, or by reason of the premises and the matters before alleged; and judgment is demanded for $2,500, and interest from May 6, 1873.

It is thus seen that the only cause of action alleged in the complaint is based upon the promise of the defendant to take the draft, collect it and apply the proceeds upon the old draft. This is plainly and explicitly set out. The proof entirely failed to establish such a cause of action, and the objection that it did so fail was plainly and pointedly, several times, taken at the trial.

The Code requires that the complaint must contain a plain and concise statement of the facts constituting the cause of action, and that the pleadings must be liberally construed with a view to substantial justice between the parties; and in section 723 ample power is conferred upon the court to amend pleadings at any stage of the action, and where the amendment does not change substantially the claim or defense, to conform the pleadings to the facts proved. Here, although the defect in the complaint was pointed out in due time upon the trial, no amendment was asked for or ordered. This is not a case where the pleadings can after the trial be conformed to the proof, as such an amendment would change substantially the claim of the plaintiff as alleged. This is not a case of mere variance or mere defect, but a case of failure to prove the cause of action