been guilty of violating the law, but would leave him where he had put himself.

An action to recover back moneys already paid rests upon a wholly different foundation. Its gravamen is that the plaintiff has been damaged by the unlawful acts of the defendant, and the most that the plaintiff can recover is the amount of his damage, being the difference between what he ought to have paid and what he did in fact pay, for, of course, in the present case, the plaintiffs cannot return what they have received from defendant and rescind the contract. The plaintiffs cannot, therefore, recover the whole amount paid to defendant.

[2] The demurrer, however, is to the effect that the complaint states no cause of action, and it cannot prevail if there be any cause of action stated, even if it be for a less amount than that for which plaintiff prays judgment, for the prayer does not determine the sufficiency of the complaint. Wetmore v. Porter, 92 N. Y. 76. It is alleged that as an incident to and embraced in the corrupt and unlawful agreement above recited it was further agreed, and the agreement was carried out, that unnecessary materials and work should be ordered and purchased, that excessive and extravagent prices should be charged, and that false charges should be made against plaintiffs for supplies and materials never furnished, and in divers other ways by collusion and conspiracy between the said employés and defendant the plaintiffs were cheated and defrauded. These allegations in my opinion set forth a cause of action justifying a recovery, although doubtless not for the full amount claimed in the complaint. If a complaint. sets out a good cause of action, it is proof against a complaint for insufficiency, notwithstanding it may be inartificially framed or might have been obnoxious to a demurrer on other grounds. For this reason the order appealed from should be affirmed with $10 costs and disbursements, with leave to defendant to withdraw his demurrer and answer within 20 days upon payment of costs in this court and in the court below.

MCLAUGHLIN and CLARKE, JJ., concur.

INGRAHAM, P. J. (dissenting). The defendant demurred to the complaint in this action upon the ground that it did not state facts sufficient to constitute a cause of action. Upon the complaint and the demurrer the plaintiffs made a motion at Special Term for judgment on the pleadings, which motion was granted with leave to the defendant to withdraw the demurrer and answer. The nature of the action is stated in the opinion of Mr. Justice SCOTT. The action is not brought to recover damages caused to the plaintiffs by a violation of section 439 of the Penal Law, but is distinctly brought for the purpose of recovering from the defendant the amount of money that plaintiffs had paid to it for the work, labor, and materials furnished by the defendant for the plaintiffs. It is in the nature of an action for money had and received by the defendant, and is based upon the fact that the defendant agreed with certain of plaintiffs' employés to pay to such employés a commission of 10 per cent. upon all orders and

work that the defendant received from the plaintiffs. It is not. alleged in the complaint that the work, labor, and materials furnished by the defendant were without value, but the only allegation in regard to the character of the work, labor, and materials furnished by the defendant is that contained in the seventh clause of the complaint, which alleges that it was agreed by and between the plaintiffs' employés on the one hand and the defendant with intent to defraud the plaintiffs on the other that the plaintiffs' employés "would give orders to the said defendant to furnish unnecessary supplies and materials on behalf of the plaintiffs, and to do unnecessary work and labor for the plaintiffs, and to charge excessive and extravagant prices for such materials and supplies and for such work, labor, and service for the plaintiffs, and to furnish defective and faulty labor and service for the plaintiffs below the grade and quality of the supplies and materials and labor and service desired and required by the plaintiffs, and which the defendant duly agreed to furnish, and to make false charges against the plaintiffs for supplies and materials never furnished, and for labor and services never performed, and in divers other ways to cheat and defraud the plaintiffs." And that, pursuant thereto, the plaintiffs' employés did, with the intent aforesaid, give orders to the defendant on behalf of the plaintiffs to furnish unnecessary supplies and material, etc., and to make false charges against the plaintiffs for such supplies and materials never furnished and for labor and services never performed, and did furnish unnecessary supplies and materials to the plaintiffs, and did unnecessary work and labor for the plaintiffs, and charged excessive and extravagant prices for such materials and supplies, and in divers other ways cheated and defrauded the plaintiffs. The complaint then alleges that the contract made with the plaintiffs' employés was a violation of section 439 of the Penal Law, and the making of such a contract made all contracts between the plaintiffs and defendant void and unenforceable; that the defendant suppressed and concealed from the plaintiffs all knowledge of said illegal and criminal agreements, and all knowledge of any and all commissions, discounts, and bonuses received by the plaintiffs' employés; that, if the plaintiffs had known of said facts, they would not have paid defendant the said sum of $41,469.46 which they paid the defendant for work, labor, and materials furnished, and that the said corrupt, illegal, and criminal agreements constituted a good and valid defense at law or in equity against any claim or demands which might have been made by the defendant against the plaintiffs on account of such materials and supplies and such labor and services, and, if the plaintiffs had known said facts, they would not have paid anything on account of said orders and contracts; that, by reason of the premises, the plaintiffs were induced by the said willful and fraudulent concealment and suppression of the said facts by the defendant in concert and in conspiracy with the plaintiffs' employés and by mistake and misapprehension to pay the sum of $41,469.46 to the defendant; that the plaintiffs were entitled to recover back from the defendant the said sum of money by reason of the premises; and that by reason thereof, namely, the payment of the $41,469.46, the plaintiffs have been damaged in that sum, for which they have made due demand.

The only allegation of damage is the allegation of damage caused by the payment of the money to the defendant. There is no allegation that the fraudulent acts of the plaintiffs' employés in giving the orders to the defendant caused the plaintiffs any damage, and the whole complaint is framed to recover the money paid by the plaintiffs upon the ground that as the contract was not enforceable by reason of this corrupt agreement, and, the plaintiffs having paid the money without knowledge of the fact that it was unenforceable, they were damaged by reason of the suppression of that fact, and therefore entitled to recover the money paid. It is conceded in the prevailing opinion that the plaintiff would not have been entitled to recover back the whole sum of money paid without returning to the defendant the goods, materials, and merchandise furnished, or allowing to the defendant the reasonable value of such materials and the work and labor that had been furnished and used by the plaintiffs. The plaintiffs make no offer in the complaint to return or allow for any of the materials, work, or labor that it has received from the defendant, and it seems to me, in the absence of such an offer in the complaint or any allegation in the complaint that the excessive or fraudulent orders given by the plaintiffs' employés or improper work or improper charges made by the defendant for the work, labor, and materials actually furnished. have injured the plaintiffs, that the complaint does not state a cause of action.

I think, therefore, this motion should have been granted, and the order appealed from should therefore be reversed.

DOWLING, J., concurs.

(75 Misc. Rep. 251.)

GERMAN SAVINGS BANK IN CITY OF NEW YORK v. DUNN et al.

(Supreme Court, Special Term, New York County. January, 1912.)

1. EMINENT DOMAIN (§ 148*)-PROCEEDINGS TO ASSESS COMPENSATION-PERSONS ENTITLED-INTEREST.

Under Greater New York Charter (Laws 1901, c. 466) § 1439, providing that all leases and other contracts relating to lands taken in condemnation proceedings shall cease, a mortgagee of such lands is entitled to that part of the award which will liquidate the mortgage debt, with interest at the legal rate from the vesting of title in the city, though prior thereto the rate of interest was reduced by agreement between the owner and mortgagee to 41⁄2 per cent., at which payments were made and accepted.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 3973992; Dec. Dig. § 148.*]

2. PLEADING (88 225, 345*)-MOTIONS-JUDGMENT ON PLEADING.

Where the denials in the answer were directed merely against the legal conclusions from the allegations of fact in the complaint, and a demurrer to a separate defense pleaded is sustained, plaintiff is entitled to judgment on the complaint with leave to defendant to serve an amended answer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 575-583, 10551059; Dec. Dig. §§ 225, 345.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Action by the German Savings Bank in the City of New York against Catherine E. Dunn, impleaded with the City of New York, to have certain mortgages on land taken in condemnation proceedings paid from the award to the owner. Cross-motion of defendant Dunn for judgment on the pleadings and for a dismissal of the complaint denied, and judgment rendered for plaintiff.

A. Henry Mosle, for plaintiff.

Harry G. Smith, for defendant Dunn.

BIJUR, J. This is an action against defendants Dunn and the city of New York, involving the following state of facts:

Plaintiff was mortgagee under mortgages securing $10,000 each on three separate parcels of real estate. The defendant Dunn was. the owner of said parcels. By appropriate proceedings under section 1439 of the charter, to acquire a site for the approach to the Blackwell's Island bridge, the title of these parcels was vested in the city of New York on September 9, 1905. The report of the commissioners. was filed on December 7, 1910, the award for loss and damage running to defendant Dunn, as owner; the amount being $87,250, subject to the lien of the amount remaining unpaid on the said three mortgages. The report was confirmed April 10-11, 1911. Plaintiff asks that it be declared entitled to the payment of the $30,000, with legal interest from September 9, 1905, less $757.50 interest paid by defendant Dunn to the plaintiff in the interval, and that, if necessary, a referee be appointed to ascertain the amount due plaintiff.

The defendant Dunn interposes an answer, which, after denying the legal conclusion involved in the complaint, sets up as a separate defense that prior to September 9, 1905, by agreement between plaintiff and the then owner of the premises, the rate of interest on the bonds and mortgages involved was reduced to 42 per cent., and that after said date plaintiff accepted interest at said rate; that on August. 10, 1911, defendant tendered plaintiff $37,248.22 in payment (together with $5 for a satisfaction piece), that being the amount of principal and interest due at the rate of 412 per cent., which tender was refused.

The contention of plaintiff that this tender was in no event effective, because not kept good in the answer, need not be decided, in view of the conclusion at which I have arrived.

[1] It will be seen that the controversy is limited to the question whether plaintiff, as mortgagee, is entitled to the interest at 6 per cent. from the time of the vesting of the title in the city, or whether defendant Dunn, as owner, shall receive the 6 per cent., while plaintiff's right is limited to 42 per cent. I have examined the numerous cases cited in the briefs, but, as admitted by counsel, none is directly in point. Defendant's argument is based exclusively on the respective rights of mortgagor and mortgagee, and disregards the provisions of the charter and the decisions thereon, which plainly change those rights in circumstances like those presented in this case. Section 1439 provides that "all leases and other contracts in regard to lands so taken shall cease and determine." It seems to me that the result of cases like Matter of City of Rochester, 136 N. Y. 83, 32 N. E. 702, 19 L.

R. A. 161, Utter v. Richmond, 112 N. Y. 610, 20 N. E. 554, and Hill v. Wine, 35 App. Div. 520, 54 N. Y. Supp. 892, is that the fund in the hands of the city, to the amount necessary, namely, $30,000 took the place of the land as security for the debt due plaintiff, and that the relations between the plaintiff and the defendant Dunn, the owner, as mortgagor and mortgagee, were terminated to the extent that, of course, no foreclosure could take place, as no lien or mortgage survived and as the land had already been reduced to money. The city's obligation became one to pay to the owner, or to the persons entitled to the whole or part of the fund by way of existing mortgage or other lien, the respective appropriate amounts, upon their determination upon a proper proceeding, and the present proceeding is a proper one in which the remaining equities between the owner and the mortgagee can and should be adjusted. In Matter of City of New York, 107 App. Div. 25, 94 N. Y. Supp. 838, it was pointed out that interest at the legal rate is awarded in these proceedings because the owner is deprived both of the use of the land and the use of the money as its value. It is equally true in the case at bar that the mortgagee, whose mortgage debt had long been overdue, was in invitum deprived of his theretofore existing right to obtain his money by the ordinary means of a foreclosure sale. It seems no more than equitable and just, therefore, that the mortgagee in respect of that part of the fund which would liquidate the mortgage debt should be placed in the same position as is the owner, to wit, the holder of the equity of redemption, in respect of the balance of the fund which represents the balance of the property. In this view, I hold that the plaintiff is entitled to 6 per cent. on $30,000 since the date of the vesting of the title to the property in the city, less any amounts heretofore paid to it on account of such interest by the defendant Dunn. Indeed, as intimated in Matter of City of New York, supra, any other ruling would, to my mind, render the statute unconstitutional under article. 1, § 6, of the Constitution, as involving the taking of private property without payment of its value.

[2] As the denials in the answer apart from the separate defense, are directed merely against the legal conclusions arising from the allegations of fact in the complaint, and as the demurrer to the separate defense should be sustained, plaintiff is entitled to judgment on the complaint against the defendant Dunn, with leave to said defendant to serve an amended answer within 20 days upon payment of $10, costs of this motion, and the costs of the action to date.

The cross-motion of defendant Dunn for judgment upon the pleadings and for a dismissal of the complaint is necessarily denied. Gordon Kleeberg, Esq., is appointed referee to take proof and report upon the amount due plaintiff.

Judgment for plaintiff.