Denman v. Prince.

tiff was entitled to an account, and tending to show an ac count stated, and demanded judgment for a sum certain as an ascertained balance, it was held that the complaint should not be dismissed; but that the action proceed as if the plaintiff had asked an accounting and judgment for the amount which should thereupon be found due. (See also The N. Y. Ice Co. v. The N. W. Insurance Co. of Oswego, 23 N. Y. Rep. 357, 359, 360; Bidwell v. The Astor Mutual Ins. Co., 16 id. 263.)

The principle established is that relief can be granted consistent with the facts stated, although not specifically demanded; without regard to the old distinction between law and equity which has been abolished by the code. (See § 69 of Code.) Under the provisions of the code which have been cited, and the liberal rules established in the adjudicated cases, to which I have referred, I see no great reason why the whole case could not be heard and disposed of. The parties were all before the court, and the proof was sufficient at least to show that the plaintiff had a right of action against the defendants, separately or together. If they were liable only separately, or if their proportions of the expenses of the repairs were different, the specific question of fact might be tried by a jury, and an accounting ordered, to adjust the amount to be paid by each of the defendants. Such relief was consistent with the complaint, and embraced within the issue, and I think that the nonsuit was improperly granted by the judge.

But conceding that the pleadings were defective, it seems to me that there was no such variance as could not be supplied under the liberal provisions of the code. (§§ 169–171.) There was no pretense that the opposite party was misled; and I think it would have been a proper exercise of discretion to allow an amendment upon such terms as the case demanded. As, however, a new trial must be granted for the reasons already given, I forego any further discussion of this point,

Carroll. Cone.

as well as of the other questions raised by the plaintiff's counsel upon the argument.

The nonsuit must be set aside, the judgment reversed and a new trial granted, with costs to abide the event.

[ALBANY GENERAL TERM, December 1, 1862. Hogeboom, Peckham and Miller, Justices.]

CARROLL and others vs. CONE.

Where money is deposited with a banker to the credit of another, the former becomes indebted to the latter, for the amount, payable on reasonable demand. But if the banker, by his words or conduct, denies the right of the depositor, as by placing the deposit to the credit of a third person, he thereby becomes presently liable to an action for the amount, without a formal demand.

So held where the banker, voluntarily, and without authority from the depositor, counted out the amount of the deposit, in bank notes and specie, and handed it to a sheriff holding an execution against the depositor, and the sheriff levied upon the money and sold it.

Held, also, that the money thus separated by the banker from the contents of his vault was his property, and not that of the depositor, and was not liable to levy under an execution against the latter.

Money being in the hands of the defendant, as a banker, belonging to a corporation, the officers of the corporation, in pursuance of authority given them by a resolution of the board of directors, transferred and assigned to the plaintiffs all claims and demands which the company might have, for such money, and authorized them to collect the same for their own benefit and use. Held that this was a valid transfer of all the rights of the corporation in respect to the money in deposit. Held, also, that it was no objection to the validity of such assignment that it was dated and executed by one of the officers signing it, in anticipation of the resolution authorizing it; it not being executed by the other officer, or delivered, until after the passage of the resolution.

Where the board of directors of a rail road corporation, by resolution, directed that a claim held by the corporation should be transferred to certain persons specified, and that the "proper officers" should execute the requisite assignment; it was held that it was to be presumed, in the absence of proof to the contrary-at least in favor of third persons dealing with the company-that the president and secretary were the proper officers for that purpose.

Carroll v. Cone.

N the 10th day of September, 1859, the Genesee Valley

New York and Erie Rail Road Company. By the terms of the lease $200 per month of the rents were appropriated to pay laborers for work before then performed in the construction of the road. On the 27th day of September, 1859, the board of directors of the Genesee Valley Rail Road Company, by resolution, pledged the moneys thus appropriated to pay laborers, to any person who would advance the money for that purpose. On the faith of this resolution, the plaintiffs advanced the sum of $300, which was appropriated to pay the laborers. The money was raised on a note made by the plaintiffs payable in New York, which the defendant discounted. The note fell due about the 3d day of December, 1859, when North, one of the plaintiffs and president of said company, for the purpose of paying the note, made his draft on the Buffalo, New York and Erie Rail Road Company, for $300, and delivered it to the defendant for collection, who shortly after received a draft for $298.50, the proceeds of the draft so delivered to him. In the meantime. the note was paid in New York by the plaintiffs, or by another person for them. North directed the defendant to place the money to the credit of the said company, until he should see others of the plaintiffs, which he accordingly did. The sheriff of Livingston county had an execution against said rail road company with which he called on the defendant, and made a demand of the money. The defendant counted out $298 in bank bills and fifty cents in specie, and put the same in a package by itself, and the sheriff made a levy upon it, and indorsed his levy on the execution, and afterwards sold the same on the execution. In December, 1859, the plaintiffs demanded the money of the defendant, who refused to pay it. February 1, 1860, the directors of the Genesee Valley Rail Road Company, by resolution, directed an assignment to be made to the plaintiffs of all their claim to the money in the hands of Cone, and of any cause of action

Carroll v. Cone.

against him; and that "the proper officers" execute the same. The assignment was dated January 11, but was not in fact executed till after February 1, 1860, but before the commencement of the action. The action was brought to recover the money from the defendant, and the plaintiffs recovered judgment for the money and interest. This judgment was affirmed at special term, and the defendant appealed.

Scott Lord, for the appellant.

Hastings & Bingham, for the respondents.

By the Court, JAMES C. SMITH, J. I think this case was disposed of correctly, at the circuit. Even if it be assumed, in accordance with the claim made by the defendant, that the money received by him as the avails of the draft of the president of the Genesee Valley Rail Road Company, was the property of the company, and not of the plaintiffs, yet it seems to me clear that prior to the time of the commencement of this suit the company transferred all their rights in respect to the money to the plaintiffs.

The assignment to the plaintiffs, executed by the president and secretary of the company, in pursuance of authority conconferred by a resolution of the board of directors, on the 1st of February, 1860, in terms transferred to the plaintiffs "all and any claims and demands which said company may have for the avails of said draft, so received by said Cone," and expressly authorized them "to collect the same for their own benefit and use."

It is insisted by the defendant that the assignment was unauthorized, as it appears to have been executed several days before the adoption of the resolution. This argument is based upon the circumstance that the assignment is dated on a day prior to that on which the resolution was passed; but it is answered by the fact that one of the officers did not sign the assignment until after the adoption of the resolu

Carroll v. Cone.

tion, and as the signature of both was essential to its validity it could not have been delivered till after that time. The circumstance that it was dated and signed by the other officer in anticipation of the action of the directors, is of no consequence.

It is also urged by the defendant that it does not appear that the president and secretary were the "proper officers" to execute the assignment. But I think it is to be presumed, in the absence of proof to the contrary, at least in favor of third persons dealing with the company, that they were the proper officers for that purpose, and that they acted in pursuance of the authority conferred by the resolution.

There is no question but that the assignment, if properly executed, was sufficient to transfer to the plaintiff all the rights of the company against the defendant, in respect to the avails of the draft. The avails consisted of money, and that having been deposited with the defendant as a banker, to the credit of the company, he of course became thereby indebted to them for its amount, payable on reasonable demand. It does not appear that a demand of payment was made by the company before, or by the plaintiffs after the assignment; but if the defendant, by his words or conduct, denied the right of the depositor, as, for instance, by placing the deposit to the credit of a third person, he thereby became presently liable to an action for the amount, without a formal demand. I think that effect resulted from the defendant's agency in the transaction with the sheriff, shortly after the money was deposited, and before the assignment to the plaintiffs. That transaction was simply an attempt by the sheriff, by virtue of an execution which he held against the company, to levy upon the debt owing to them by the defendant; and to enable him to do so, the defendant, voluntarily and without authority from the company, counted out the amount of the debt, in bank bills and specie, and handed it to the sheriff. In this, the defendant clearly did not act in obedience to any requirement of the law. The money thus separated by