There is nothing in the record to show any knowledge on the part of appellant of her husband’s wrongdoing. The account was in reality his account. It was his money, disbursed by her for his account without notice or intimation that any one else had claim to it. And now in 1919 she is saddled personally with a judgment for $2,629.32, on the theory of money had and received. I am persuaded that this is an unjust result. The action, while" it is brought at common law, depends upon general principles of equity. (Chapman v. Forbes, 123 N. Y. 532, 536.) This was not a case brought by the party defrauded against the principal who has defrauded him, such as Town of Bleecker v. Balje (138 App. Div. 706), *552 Kingston Bank v. Eltinge (40 N. Y. 391), or Mulligan v. Harlam (46 Misc. Rep. 571), cited by the learned trial justice and by the counsel for respondent. These were cases brought against the principal, or in the last case against a defendant chargeable with notice of the existing facts. The learned judge says he has been unable to find any case presenting this precise question, and, “ If she still had the money, she would be clearly liable to pay it over to the plaintiff.” With this conclusion I agree. She would have no better title to the money than her husband, and he would have no right to the money as against the plaintiff. But the judge says, “ I know of no principle of law or equity which could permit its expenditure by her for her own benefit, however innocent, and thus prevent her liability,” and in this I am constrained to differ with him.
If a bank receives deposits to the credit of the account of a depositor, and pays out such deposits in good faith on the depositor’s checks, can it be held hable in an action for money had and received, to a stranger from whom the depositor wrongfully obtained the money? If notice is given, it is another thing. In such case if the bank pays out the money notwithstanding the notice, undoubtedly the action would he. Or if the money remained on deposit an action might be maintained to recover it. But where it is paid out without notice of any claim, or knowledge of any wrongdoing or defect in the title, it would be unjust to say that five years thereafter a stranger might come in and oblige the bank to pay it a second time. Stolen funds can be traced until they come into the hands of a bona fide holder for value, when the title is lost, for money has no earmarks. But when the funds come into the hands of an agent, bailee or depository, who either returns them to the principal or lays them out for the principal’s benefit without notice, it would seem that no liability should attach. Under any other rule business could not be safely transacted. It is not necessary to find that the appellant wife was at all times acting as the agent of her husband in disbursing this money, although I think this was the fact. She asserted that she had no interest in the account save to disburse it for her household expenses, etc., and to give Barreto such amounts as he requested. He made most of the deposits, *553she would receive notice from the bank that such a deposit was made, enter it on her check stub, and continued drawing against it. But suppose the money was given to her by him to use for her own individual purposes. I do not see how any different rule would prevail. I think the plaintiff was obliged to show notice and demand while she had the money in her possession to justify recovery against her personally.
The cases cited by the learned counsel for the respondent are not opposed to this conclusion. Empire State Surety Co. v. Nelson (141 App. Div. 850) was a case where the defendant received payment of a personal debt from a special guardian, out of the trust money in the special guardian’s hands, “ knowing at the time he received such payment that it was made from guardianship funds.” In Roberts v. Ely (113 N. Y. 128) the complaint was dismissed on the ground that it was barred by the Statute of Limitations. But that case would be no authority for the plaintiff in any event because Ely, the defendant, had notice of the equitable right of the plaintiff. The court in discussing the nature of the action, said (p. 131): “ No privity of contract between the parties is required, except that which results from the circumstances.” But the Court of Appeals in no way intimates that an innocent bailee or custodian of the money was responsible where it had been paid out in good faith without notice of the claim of the plaintiff. The court said: “ The action for money had and received to the use of another is the form in which courts of common law enforce the equitable obligation. The scope of this remedy has been gradually extended to embrace many cases which were originally cognizable only in courts of equity. Whenever one person has in his possession money which he cannot conscientiously retain [italics mine] from another, the latter may recover it in this form of action, subject to the restriction that the mode of trial and the relief which can be given in a legal action are adapted to the exigencies of the particular case, and that the transaction is capable of adjustment by that procedure, without prejudice to the interests of third persons.” It is suggested that the appellant wife did not take the funds as a purchaser for value and that mere absence of knowledge by a volunteer is not enough; that to give good title the receiver must be both innocent and a purchaser for value. *554(Pom. Eq. Juris. [4th ed.] § 1080.) But upon the facts in this case, it is not exact to describe the wife as a mere “ volunteer.” A good wife gives value for every dollar her husband gives her. She performed her duty as a wife and mother faithfully. The moneys were expended in good faith for food and clothing and maintenance of the household or returned to the husband on his request. I think that, at least, she is in as good position as a bank of deposit. Married women have their own burdens, but if it is to be held that they are responsible in money damages and possibly to arrest under execution against the person years after the happening of the event because they have received money from their husbands, in good faith, and disbursed it by returning it to him or for household expenses and food and clothing for the family, there is a new and serious responsibility placed upon them. To follow up an innocent woman for the misdeeds of a bad husband may be justifiable in some cases, but in the case at bar when she parted with the money five years before she ever heard of plaintiff’s claim, I can perceive no equity in plaintiff’s claim against her.
The judgment should be reversed, with costs, and the complaint dismissed, with costs. This court reverses so much of the 10th finding of fact as finds that the proceeds of sale of the bonds have been retained by the defendant Katherine E. Barreto, also the 12th and 13th findings of fact and all of the conclusions of law of the trial justice. And this court finds the facts set forth in defendant’s requests to find numbered 6, 9, 10, 15, 16, 18. This court also makes additional findings of fact as follows: A. That after the deposit of $1,887.05 on April 30, 1913, the defendant Katherine E. Barreto drew checks against her deposit in the First National Bank of Portchester for household expenses, clothing, taxes, insurance premiums, etc., and for cash paid to her husband from time to time at his request and for no other purpose. B. That all of said deposit of $1,887.05 except the sum of $52.06 had been withdrawn from said bank and paid out by said Katherine E. Barreto before August 1, 1913, for the purposes set forth in finding A. C. That such withdrawals and payments were made by said defendant Katherine E. Barreto in good faith and in regular course without any *555notice that the plaintiff or his testator Annie J. Dade had any claim to said moneys, or that they were the proceeds of any misappropriation by John D. Barreto, the husband of said Katherine E. Barreto. D. That this action was not commenced until June 19, 1918, at which time the defendant Katherine E. Barreto had no money or property in her possession derived from the conversion or misappropriation by John D. Barreto of the two bonds referred to in the complaint; and the following conclusion of law: A. That the plaintiff has failed to make out a case against the defendant and that defendant is entitled to judgment dismissing the complaint upon the merits, with costs, entry of which judgment is hereby directed.
Mills, J., concurs; Blackmar, J., concurs in separate memorandum; Putnam, J., reads for affirmance, with whom Jenks, P. J., concurs.