This case having been tried by jury, it is conceded by the appellant's counsel that this appeal cannot be upheld, unless upon the theory that, assuming every controverted question of fact in favor of the defendant, the plaintiff was entitled to recover. (Harris v. *Page 120 Burdett, 73 N.Y. 136; Sands v. Crooke, 46 id. 564.) The action is brought to recover two items or sums paid by plaintiff to the defendant, which are alleged to have been extorted from the officers of the plaintiff without consideration and wrongfully, by means of a conspiracy between the defendant and the National Bank examiner. The defenses were a denial of these allegations, and, as to one of the sums paid, that it was for services rendered to plaintiff by a bank of which the defendant was president; that the payment was to the bank and not to the plaintiff, and that it was made voluntarily. As to the other item, that it was a voluntary charitable contribution to a church, of which defendant was treasurer.
There was evidence in support of each of these positions. It is claimed, however, that, throwing out of view all the charges of wrong and conspiracy, the evidence shows conclusively that the sums were paid without consideration by the officers of the plaintiff when it was in a failing condition, and that on that ground alone the plaintiff is entitled to recover. Assuming, without deciding, that the payments, though voluntarily made, could be recovered back by the plaintiff under those circumstances, still, if the defendant committed none of the wrongs alleged, and, as to the payment of $5,000, acted merely as the officer or agent of his bank in receiving the money, and the payment was, in fact, to the bank, and the money went to its use, the defendant could not be held personally liable to the plaintiff, but the action should have been against the bank. The General Term may, on the evidence, have taken this view of the facts, as to that part at least of the sum sought to be recovered, and if the recovery was wrong, even in part, the order granting a new trial was proper. The position cannot be maintained that the uncontroverted facts entitled the plaintiff to an affirmance of the judgment at General Term.
The appeal should be dismissed, with costs.
All concur, except FINCH, J., absent at argument.
Appeal dismissed. *Page 121