Gilbert Dechen, an Infant, by Katie Dechen, his Guardian ad Litem, Appellant, v. Ellen F. Dechen, Respondent

Gilbert Dechen, an Infant, by Katie Dechen, his Guardian ad Litem, Appellant, v. Ellen F. Dechen, Respondent. Deposit of money — if improperly paid, -out by. the depositary the owner may recover from it or from the pm'ty to whom it is paid jurisdiction of the Municipal Gowrt of the city of New York of an action for money had and received. Where the. deposit of money in a building, loan and savings association inures to the benefit of a person and vests-inhimthe right to demand and receive the same, and the association pays such money to a third person, the person to whom the money belongs máy repudiate the payment and recover the amount thereof from the association or may ratify such payment and recover the money from the third person as money had and received. The Municipal Court of the city of Few York has, under subdivision 1 of section 136Á of the Greater Few York charter (Laws of 1897, chap. 378), jurisdiction of an action for money had and received, provided the amount is fixed and determined and is less than §500, that an accounting is- not necesary in respect to the same, and that neither party has an equity which it is necessary to determine in the decision of the case. Appeal by the. plaintiff, Gilbert Dechen, an infant, by Katie ■ Dechen, Ms guardian ad litem, from a judgment of the Municipal •Court of the city of Rew York, borough of Richmond, first district, rendered on the 11th day of September, 1900, dismissing the complaint upon the ground that the Municipal Court did not have jurisdiction of the subject-matter of the action. Frank H. Innes, for the appellant. James Burke, Jr., for the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: This action was brought to recover the sum of $147.86 which, it is claimed, the defendant had and received for the use of the plaintiff. It is clear from the evidence in this case that the deposit made by the uncle of the plaintiff with the Rorthfield Building, Loan and Saving Association inured to the benefit of the plaintiff and vested in him the right to demand and receive the same. The relation between the plaintiff and the association at the time the money was paid to the defendant was that of debtor and creditor (People v. Mechanics & Traders' Savings Inst., 92 N. Y. 7), and while the plaintiff .could have repudiated the payment of the money to the defendant, and recovered the amount thereof from the association, he also had the right to adopt and ratify the act of the association in making the payment, and bring this action for money had and received, and recover it from her. (Fowler v. Bowery Savings Bank, 113 N. Y. 450.) This case is to be distinguished from one based upon the wrongful disposition of property, as where the money was absolutely the money of the plaintiff left on special deposit, or one where a trustee in breach of his trust disposes of the trust property and the plaintiff seeks to recover the property or the proceeds thereof, for it is not here claimed that the association paid over any trust moneys •or that the payment to the defendant, was wrongful. The money paid was not, in fact, the properly of the plaintiff it was merely a debt due him from the association, which, having been paid to the defendant, the plaintiff elected not to ignore. ■ He •adopted and . ratified the payment, and brought this action against the defendant upon an implied promise from her to pay the money she had received for the use of the plaintiff. Subdivision 1 of section 1364 of the charter of the city of Rew York (Laws of 1897, chap. 378), iti. terms, confers upon the Municipal Court jurisdiction to entertain “ an action to recover damages upon, or for breach of contract, express or implied, other than a promise to marry, where the sum claimed does , not exceed five hundred dollars.” The amount of money the defendant had received was fixed and determined; no accounting was necessary in- respect to the money, and it does not appear that either party had an equity which was required to be determined. It follows, therefore, that the action was properly brought; that the court had jurisdiction of the matter, and it was its duty to have proceeded with the trial. The judgment of the Municipal Court should be reversed, with costs. All concurred. Judgment of the Municipal Court - reversed and new trial ordered, costs to abide the event.