This action originated in a justice’s court, and came into the county court of Cortland county by appeal, in which latter court it has been three times tried.
It appears from the opinion of Mr. Justice Pabkeb that a new trial was granted, after the first trial in the county court, on the ground that the plaintiff showed no right or title to the money claimed by him in the action. He held: First, that there was no privity of contract shown between the parties; second, that the claim at the time of the alleged agreement with the defendant was no more than a mere contingent possibility, not coupled with an interest, hence was incapable of being sold and transferred; and, third, that the alleged agreement between the parties was against public policy and void.
This opinion was adopted by the court, and became the law of the case as applicable to the facts proved on the first trial; and doubtless it controlled the decision after the second trial. To the decision of the court thus pronounced at two general terms we owe respectful obedience. Unless, therefore, the case now before us is different from that considered by Mr. Justice Pabkeb in his opinion, we must abide by the conclusions there declared. The only difference claimed to exist between the case now before us and that formerly before the court is this: That an assignment of the claim is now prpved, from West to the plaintiff. On the former trial (the first one) this transfer was not shown, and it is supposed by the plaintiff’s counsel that this evidence relieves the case from the difficulties in the way of a recovery stated by Mr. Justice Pabkeb. But here arises a question raised by the objection to this evidence. The complaint is simply for money had and received by the defendant to plaintiff’s use. There is no allegation in the complaint that the claim originally belonged to West, and that he sold and transferred it to the plaintiff. The plaintiff does not claim in the complaint as the assignee of West. If he claimed as the assignee of West, he *594should have alleged a cause of action by West against the defendant and a transfer thereof by West to himself. The complaint contains no such averments, but is a simple complaint for money had and received. Under this complaint, it was not competent for the plaintiff to make a case as assignee, through a sale and transfer from West to himself of the cause of action.
Were this a mere variance between the pleading and the proof, an amendment might have been allowed in the court below, and might doubtless yet be allowed by this court on the appeal, to meet and answer the objection. But it is more than a mere variance between the pleading and the proof. The evidence tended to show an independent and different cause of action from that stated in the complaint: a cause of action .in favor of West assigned to the plaintiff, not a cause of action in favor of the plaintiff for money had and received to his use. Union Bank v. Mott, 30 Barb. 389; Whittaker v. Merrill, 18 How. 506, on page 508. The objection was distinctly taken, that the evidence was inadmissible under the complaint. There was no averment that the plaintiff claimed the money as assignee, and the evidence of the assignment by West to him was improperly received. Nor can its introduction be deemed immaterial and harmless. The judge laid great stress on this evidence in his charge to the jury. Indeed, he gave the jury to understand that without evidence of a transfer of the claim by West to the plaintiff there could be no recovery.
It seems very plain that on the complaint, which presents a claim merely “for money which defendant had of plaintiff for defendant’s own use ” (this is the language of the pleading), the plaintiff cannot be allowed to recover on an assigned demand. The recovery on a claim assigned by West to the plaintiff was unauthorized in this case.
This difficulty stands directly in the way of a recovery in this. action, if it be necessary to show a transfer of the claim from West to the plaintiff. This position presupposes that West, the substitute, was entitled to the bounty-money, $100 of which the defendant had obtained. So this court held—Judge Parker says, “no one but West, the substitute, or his assignee, was entitled to it—one hundred dollars of this bounty, thus belonging to West, the defendant obtained from the town authorities.” It follows, therefore, that' the plaintiff must base his action on a transfer of the claim from West to himself. This he omitted to do. No such right of action is stated or suggested in the complaint.
*595We are cited to the case of Barber v. Marble, 2 N. Y. Sup. 114, as an authority in favor of allowing an amendment to meet the difficulty above considered. That case differs from this in many of its facts; one of which is (and this is a very important one) that the case as made on the evidence was substantially embraced within the issues presented by the pleadings. In this view, of course, an amendment was properly allowed to conform the pleading to the facts proved. It was not introducing a new and different cause of action. And here again we are met by the former decision of this court in this case, reversing an order ■ of the county court which allowed the precise amendment now desired. That decision made at a recent term of this court, in this case, must be now observed. On what ground that decision was made we are uninformed, as no opinion was written; but we must, I think, infer that the order was reversed on the' ground that an amendment of the complaint setting up a new cause of action was improper at that stage of the case.
But according to the opinion of Mr. Justice Parker, which, having been adopted by this court, as above stated, must now be accepted as the law of this case, there are other reasons why the plaintiff cannot recover in this action. It was decided in this case on the former appeal, that the plaintiff could not recover on the agreement made between the plaintiff and defendant, to the effect that the former should have all the bounty-money to which West, the substitute, should be entitled. Mr. Justice Parker says, “ Granting that the terms and intent of the agreement between the parties included this among the bounties which the defendant agreed the plaintiff should have, the question arises, what is the effect of such agreement in regard to the bounty in question ? ” He then proceeds to consider this question at length, and comes to the conclusion stated in the former part of this opinion, to wit: That the claim at the time of the alleged agreement was a mere contingent possibility, not coupled with an interest; hence was incapable of being sold. Also, that the alleged agreement was against public policy, and void. Those conclusions we do not now propose to re-examine, inasmuch as they have already received the sanction of this court at two general terms. Even were we disposed to question the soundness of those conclusions, the concurrence in opinion by those learned judges who then composed the court should stand as against our own on this subsequent presentation of the same case. It should be added here that some of the views of *596the court,, as expressed in the opinion of Mr. Justice Parker, are supported by the more recent decision in Butterworth v. Gould, 41 N. Y. 450, and in Osby v. Conant, 5 Lans. 310. It seems, therefore, that the plaintiff failed to establish a cause of action, and the county court should have directed judgment for the defendant.
Judgment reversed and new trial ordered.