The complaint in substance alleges that one Alfred G. Myers died March 4, 1887, a member of the Hew York Stock Exchange in good standing; that as part of the benefit accruing from membership in said exchange it is provided in the constitution of said exchange that upon the death of any member in good standing, leaving neither widow nor children, there shall be given to his next of kin, within the limit of representation prescribed by the statutes of the state of Hew York, the sum of $10,000 as a gratuity from the surviving members of the said exchange, which said constitution further provides as follows: “The faith of the Hew York Stock Exchange is hereby pledged to pay, within one year after proof of death of any member, out of the money so collected, the sum of ten thousand dollars, or so much thereof as may have been collected, to the persons named in the next section, as therein provided, which money shall be paid as a gratuity from the surviving members of the exchange,, free from all debts, charges, or demands whatever. * * * In all cases a certified copy of the proceedings before a surrogate or judge of probate shall be accepted as proof of the rights of the claimants, and be deemed ample authority to the stock exchange to pay over the money, shall protect the exchange in so doing, and shall release the exchange forever from all further claim or liability whatsoever. * * * Hothing herein contained shall be construed as constituting any estate in esse which can be mortgaged or pledged for the payment of any debts; but it shall be construed as the solemn agreement of every member of the stock exchange to make a voluntary gift to the family of each deceased member, and of the exchange to collect and pay •over to such family the said voluntary gift; it being understood and hereby expressly declared that the provisions of this article 18 of these rules shall only be in force in and apply to cases of death which shall take place after its adoption.” That said Alfred G. Myers left him surviving, as his next of kin, his •two sisters, Matilda and Louisa Myers, one brother, (the defendant,) Theodore A. Myers, and four children of a deceased half-brother, viz., Ada Frank, Sarah Myers, Maria Moss, and Frederick S. Myers; that said Alfred G. Myers left a last will and testament, and in and by said will" he bequeathed said gratuity fund of $10,000 to his two sisters and his said brother, (this defendant,) .share and share alike; that thereafter one John A. Rutherford, one of the executors of said will, presented a petition to the surrogate of the county of Hew York for the probate of said will, .and said will was thereupon duly admitted to probate: that in said petition said Rutherford alleged that the only next of kin of said. Alfred G. Myers, deceased, were the defendant, Theodore A. Myers, and his said two sisters; that said petition was erroneous and untrue, in that the petition should have recited that the said Sarah Myers, Maria Moss, *713Ada Frank, and Frederick S. Myers were also of the next of kin of said Alfred G. Myers, deceased; that, if said petition had stated the relationship of the said Sarah Myers, Maria Moss, Ada Frank, and Frederick S. Myers to said deceased, the trustees of the gratuity fund of the Hew York Stock Exchange would have divided said fund into four parts, and given one fourth of a fourth, or one sixteenth, to each of said alleged children of the deceased half-brother of said Alfred G. Myers; that the trustees of said gratuity fund, in good faith and in ignorance of the relationship of said Sarah Myers, Maria Moss, Ada Frank, and Frederick S. Myers to said Alfred G. Myers, deceased, and misled by said probate proceedings, paid said gratuity fund to the said two sisters and this defendant, one third thereof to each; that before the commencement of this action a demand was made on the defendant, in behalf of said Sarah Myers, Maria Moss, Ada Frank, and Frederick S. Myers that he pay over to each of them the sum of $208.33 of the money so received by him from the trustees of the gratuity fund of the Hew York Stock Exchange; that he refused to make any payment, and claimed that he was entitled to the full amount he had received from said trustees of the gratuity fund, under the said will of Alfred G. Myers, deceased; that before the commencement of this action Sarah Myers sold and transferred to plaintiff her right, title, and interest in and to the claim and demand which she had against said defendant for her share of the moneys received by said defendant from the trustees of the gratuity fund. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court at special term overruled this demurrer, and from the judgment thereupon entered this appeal is taken.
We think that the stock exchange having created the gratuity fund for the next of kin of a deceased member, and having provided that it should not be construed as constituting any estate in esse to which a member had title, the deceased had no such property right therein as would have enabled him to change the beneficiary while living, or dispose of the fund by will after death. The by-laws of the exchange designated to whom the money should go after a member’s decease, and the title or right of such persons designated to share in the fund was immediately created and vested upon a member’s death. While it is called a “gratuity,” it was beyond the power of the exchange itself to withhold it after collection against those beneficially interested, though when paid to persons not justly entitled thereto, pursuant to an order or other proceeding before a surrogate, such payment discharges the exchange from any liability to again pay it over, even to the rightful owners thereof. Such protection, however, thrown about the exchange in making payment, does not affect the right or title of those legally entitled to the fund. Moneys, therefore, which should have been received by plaintiff’s assignor, having been through mistake paid to defendant, the question presented is, can a recovery be had?
The action is one for moneys had and received, and plaintiff’s theory is that, having been wrongfully deprived of the money through the mistake or misrepresentation of the true facts to the exchange, which resulted in payment to defendant, that the latter has received money which exequo et bona belongs to the plaintiff, and which, after demand and refusal, he is entitled to recover. On the other hand, defendant insists that the action cannot be maintained; that “the complaint does not allege any fraud, deceit, or misrepresentation on the part of the defendant; nor does it allege that the defendant was the agent, expressly or impliedly, of the plaintiff or his assignor in any way; or that there was paid to him or that he received any sum whatever as the agent or representative of the plaintiff or his assignor, or for his or her account, or in trust for him or her; or that he concealed any fact from the Hew York Stock Exchange, or from the trustees of the gratuity fund thereof; or that he had any knowledge of the contents of said petition for probate, or made any claim based thereon; or that he had any knowledge *714of the existence of the plaintiff’s assignor, or of any of - the alleged children of the alleged half-brother; or that any proceedings have been had to probate-their heirship, or amend the petition for probate referred to in the complaint;, but the complaint does show that the money paid to the defendant was a ‘voluntary gift ’ and ‘gratuity ’ from the stock exchange to him; that the exchange was directed to make such gift to him by the will of the deceased member on whose account it was to be paid; that it was claimed by defendant for himself only; and that it was paid to and received by him as his own, and for his exclusive use and benefit. ”
Having disposed of the question of the effect of the will, and reached the-conclusion that the plaintiff’s assignor was entitled to a portion of the fund as one of the next of kin, it remains to consider the authorities upon which, the appellant’s contention is claimed to be supported. Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 N. Y. 450; Rowe v. Bank, 51 N. Y. 674; Hathaway v. Town of Homer, 54 N. Y. 655; Decker v. Saltzman, 59 N. Y. 275; Peckham v. Van Wagenen, 83 N. Y. 40. We had occasion' to examine these cases recently in the case of Fox v. McComb, 18 N. Y. Supp. 611, (decided herewith,) and it is not necessary for us to do more than state in the language of Woodruff, J., in the case of Butterworth v. Gould, the principles underlying these eases. He says at page 463: “The principle-of the decision is in accordance with the case in this court, viz., where a defendant has received moneys due to the plaintiff, but claiming it as his own under circumstances in which he has no authority from the plaintiff, and. does not act under pretense of. such authority, and the payment to him is-made in proposed refeognition of his title thereto as his own, and does not operate to discharge the payor from his liability to the plaintiff, then, and in such case, there is no trust, arid no implied promise, to pay the money to the-plaintiff. ” The decision referred to in the foregoing quotation was that of Sergeant v. Stryker, 16 N. J. Law, 464, decided in the supreme court off Yew Jersey, and which was to the same effect as Patrick v. Metcalf, supra. As shown, however, in Butterworth v. Gould, there is a class of cases, namely, where fees are collected by an officer de facto, he may be proceeded, against by the officer dejúre as for so much money had and received to his use. Why ? Because he has received them by a color of authority, and those who paid had a right to pay them, and are protected in making such payments. The principle underlying .this latter class of cases seems to us to> be analogous to the one at bar. We have, however, as shown by the learned judge in his opinion below, another class of cases, also relied upon here by the appellant, where payment has been made upon conflicting claims known to-the person who made the payment. In some of these the payment resulted in discharging the principal debtor, and in others, again, the debt was not discharged. But it was still held that no recovery could be had in favor of one-rightfully entitled to the money against one to whom the payment was made,, where it appeared that such moneys were received under an adverse claim,, and in hostility to the person really entitled thereto. The quotation from. Mr. Justice Blackstone by the learned judge below is apt, viz., that indebita~tus assumpsit lies “ when one has received money belonging to another, without any valuable consideration given on the receiver’s part, for the law construes this to be money had and received for the use of the owner only, and implies that the person so receiving promised and undertook to account for it to the true proprietor.”
The principle thus enunciated is in entire harmony with the view expressed by Mr. Justice Andrews in the case of Roberts v. Ely, 113 N. Y. 131, 20 N. E. Rep. 606: “The case falls within the familiar doctrine that money in the hands-of one person to which another is equitably entitled may be recovered in a. common-law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the-same to the person beneficially entitled. The action for money had and re*715ceived to the use of another is tlie 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 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. Ho privity of contract between the parties is required except that which results from the circumstances. Mason v. Waite, 17 Mass. 560. The right on the one side, and the correlative duty on the other, create the necessary privity, and justify the implication of a promise by defendant to do that which justice and equity require. It is immaterial, also, whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on his part, created by the circumstances, to account for and pay it over to the plaintiff.” The facts presented, namely, that the stock exchange, by payment to the defendant, became discharged from all liability to-pay over the amount again to the plaintiff; that the payment was made by mistake, and was received by the defendant, not asserting any hostile claim thereto, but merely accepting the same as paid to him; and no question existing but that the title of the plaintiff to so much thereof as was payable to him was valid, and that the same came wrongfully into the possession of the defendant,—we think distinguish this case from those relied upon by the appellant, and bring it within the principle stated in Roberts v. Ely, supra, and Carver v. Creque, 48 N. Y. 385, that money in the hands of one person to which another is equitably entitled may be recovered. It is true that the case of Roberts v. Ely was decided upon the ground that the statute of limitations had run, and no recovery could be had. But, as an argument and an expression supported by authority as to what principle should be applied in cases of this kind, it is of great value and weight, expressing, to say the least, the views of a learned and able judge .of our highest appellate court. We are therefore of opinion that the complaint does state facts sufficient to constitute a cause of action, and that the demurrer was properly overruled. The judgment should be affirmed, with costs, and with leave to answer over on payment of costs in this court and court below. All concur.