The only question to be determined is whether it was necessary for plaintiff, suing as trustee for money had and received for usé of the estate, to allege and prove non-payment to Lee or his assignee.
The complaint alleges that the moneys in question were collected by the association'and received for the use of the estate and belonged to the estate “and now belong to plaintiff as trustee thereof.and that the plaintiff has demanded payrnent of the defendant and no part of the sum “has been paid or turned over to the plaintiff.”- If the association properly paid the bankrupt or the assignee before demand by the plaintiff, the latter would have no claim against the defendant. Such facts, it is contended, would only constitute a defense; but must an association or an individual be called into a legal action merely for such a purpose and in the absence of an allegation that it or he has been guilty of a breach of duty % To constitute a cause of action the plaintiff must show, it seems to me, not only that the defendant collected moneys but now has them and refuses, after a lawful demand, to pay them.
. This complaint fails not only to state that the moneys have not been paid to the bankrupt or his assignee, but fails to state that they are in existence or in the possession of the defendant, the averment being that they were collected and have not been paid to the plaintiff. In Lent v. N. Y, & Mass. R. Co. (130 N. Y. 504) the rule is reaffirmed that in an action upon an alleged indebtedness an allegation of non-payment is essential, and it Was stated that it cannot be held that because payment as a defense must be pleaded the breach of the agreement need not be alleged in the complaint; that “ no presumption can be indulged in that a defendant has failed in his duty or omitted to perform his contract obligation.” In Wither-head v. Allen (4 Abb. Ct. App. Dec. 628) it was said: “ The. fact that the company in 1857 became indebted to the plaintiff in a sum *257named * * * does not make out a present right of action against the company without the further fact of a present duty and a breach of it. * * * This, in the complaint under consideration, is wholly wanting. It does not even allege an existing indebtedness.”
If the defendant collected moneys belonging to the estate of Lee, it then became the duty of the association to'turn over such moneys to the assignee; but there is no averment that this has not been done, nor is it alleged that the defendant now has the moneys in its possession, or that prior to plaintiffs demand it had failed to turn them over to Lee or his assignee.
The interlocutory judgment should, therefore, be reversed, with costs, and the démurrer sustained, with costs, with leave to plaintiff to amend complaint upon payment of costs in this court and in the court below.
Van Brunt, P. J., and Laughlin, J., concurred; Patterson and Hatch, JJ., dissented.