Kraft v. Phipps
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Edward L. E. Phipps, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 24th day of April, 1897, upon the decision of the' court rendered after a trial at the Westchester Special Term.
1Opinion of the Court
Bradley, J.:
The action is for money alleged to have been had and received by the defendant to and for the use of the plaintiff.
While it is so treated by the "defendant’s counsel, it is insisted that. there is a fatal variance between the pleading and proof, for the asserted reason that the allegation of the complaint, that the money in question was received from insurance companies, is not sustained by the evidence, because the proof is that the money came to the defendant from the plaintiff. The evidence would, nevertheless, go in support of an alleged cause of action for money had and…
2Cases cited2 opinions
- Honegger v. . WettsteinNew York Court of Appeals · 1883
- Miller v. BoyerNew York Supreme Court · 1894