Legal Opinion

Gutman v. Rogers

New York Court of Common Pleas

Decided April 6, 1891PublishedCited by 3 opinions

Appeal from city court, general term. Action by Carl Gutman against Henry Rogers to recover money had and received to the defendant’s use. The plaintiff appeals from an order affirming a judgment of the trial term, dismissing the complaint at the close of the plaintiff’s case. For former report, see ante, 576.

1Opinion of the CourtPryor, J.

In form and in substance the action is for money had and received by defendant to plaintiff’s use. The rule is elementary that, to maintain such action, the plaintiff must allege and prove that the defendant has actually received money, or its equivalent, which belongs of right to the plaintiff, and which the defendant is bound in conscience to pay over to the plaintiff. And the evidence must tend to show a definite and determinate sum so due and payable to the plaintiff. Harvey v. Archbold, 3 Barn. & C. 626; Tankersley v. Childers, 23 Ala. 781. Although in form a common-law action, the…

2Cases cited6 opinions

  1. Roberts v. . ElyNew York Court of Appeals · 1889
  2. Stillwell v. . StaplesNew York Court of Appeals · 1859
  3. McMahon v. . RauhrNew York Court of Appeals · 1871
  4. Lee v. . AdsitNew York Court of Appeals · 1867
  5. Rathbone v. StockingNew York Supreme Court · 1848

1 more not listed; retrieve them via the Exa API.

3Cited by3 opinions

  1. Lawrence v. LawrenceAppellate Terms of the Supreme Court of New York · 1900
  2. Niele v. StokesAppellate Terms of the Supreme Court of New York · 1908
  3. Walcoff v. BittkerAppellate Terms of the Supreme Court of New York · 1910

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