Opinion
December, 1920.
The complaint fails to show that the payment by the trust company to the defendant, or the re-imbursement by plaintiff to the trust company was made through mistake or fraud, so as to entitle the plaintiff to recover the same from defendant. Nor does it appear from the allegations in the complaint that the plaintiff was under any legal obligation to repay the money to the trust company, which it had paid out to the defendant upon the alleged fictitious and unfounded claim. There is no allegation that the trust company paid over the moneys relying upon the representations made by the plaintiff to it, or that it did not know they were false. Neither is there any allegation in the complaint that the plaintiff, in turn, relying on such representations and without knowing they were false, paid over to the trust company the sum of money which it seeks to recover. These facts should not be left to mere inference, as the respondent's counsel contends, but should have been distinctly alleged if plaintiff desires to found his claim thereon. The order should be reversed, with ten dollars costs, and the demurrer sustained, with ten dollars costs, with leave to the plaintiff to serve an amended complaint upon the usual terms. All concur. Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to the plaintiff to amend his complaint within twenty days upon the payment of the costs of the motion and of this appeal.