Plaintiff alleged that $253 belonging to her had been received by defendants from one Paula Jacoby Pick, which defendants agreed to remit to plaintiff in Germany; that defendants had failed to remit the money but still retained it and refused to pay it over after demand. .
On the trial it was shown that certain checks were sent to defendants by Mrs. Pick with the request that they be sent “ in the usual way ” to Jacoby & Lang, at Mainz, Germany. There was no proof that the moneys in question were the property of either plaintiff or Jacoby & Lang. But plaintiff urges that she is entitled to recover on the theory that the agreement for remittance, made between Mrs. Pick and defendants, was a contract for the benefit of Jacoby & Lang and that she is the successor in interest of Jacoby & Lang — it being conceded that the moneys Were never received by that firm.
At the close of the whole case the court reserved decision and later directed judgment for defendants. Plaintiff appeals.
The judgment must be affirmed for several reasons:
1. There is no competent evidence that plaintiff has succeeded to the rights of Jacoby & Lang.
2. The contract is not one within the doctrine of Lawrence v. Fox (20 N. Y. 268) as modified by later cases. (Seaver v. Ransom, 224 N. Y. 233.)
3. It was shown on the trial that the defendants had for many years been in the habit of receiving remittances from Mrs. Pick to be transmitted to Jacoby & Lang and that in the present case they followed precisely the practice which they had been accustomed to follow, to her knowledge, in the previous cases, and that they advised her of their action in the present case to which she, apparently, and quite naturally, made no objection. It is evident that there Was no intention that the checks themselves should bo forwarded to Germany. The checks were to be collected here and their proceeds credited to the German bank. In other Words, the defendants did all that they can properly be held to have *35agreed, to do and are, therefore, under no liability either to Mrs. Pick or to any one else.
We have examined the record and briefs on the former appeal. The case had been tried very briefly and informally and the court had dismissed the complaint on the merits at the end of plaintiff’s case on defendants’ motion, which did not specify any grounds for the dismissal. We reversed and sent the case back for a new trial.
On the first trial there had been proof of the Gemían law which appeared to show that plaintiff had succeeded to any right or title of the firm of Jacoby & Lang, which evidence is lacking here. The complaint having been framed on the theory that the. moneys in question belonged to plaintiff when deposited with defendants, the question of her right to sue as the beneficiary of an executoiy contract did not arise, and was not argued or considered on the former appeal. Nor did it then appear that the defendants had followed in this case the course uniformly followed by them in hundreds of previous cases during a period of years. Hence, we think, our previous decision presents no obstacle to a proper disposition of the present appeal on its merits.
Judgment affirmed, with twenty-five dollars costs.