The defendant’s motion to strike paragraph Fifth from the first cause of action, under rule 103 of the Buies of Civil Practice, is granted since the matter therein set forth is evidentiary. If it becomes material and relevant to the establishment of plaintiff’s cause of action at the trial, it may be admitted into evidence. (Gluck v. Pickel, 286 App. Div. 1071.)
Insofar as defendant seeks to dismiss the second cause of action for plaintiff’s failure to allege a demand and refusal, the court is of the opinion that no such demand is necessary in view of the allegation in said cause of action that in violation of his duty as president of the plaintiff bank, the defendant received from a borrower for his own profit, benefit and advantage the sum of $22,000 for procuring for such borrower from the bank a loan of a quarter of a million dollars and that plaintiff was thus deprived of moneys that rightfully belong to it as consideration for the granting of the aforesaid loan.
An action for money had and received “is in its nature a substitute for a suit in equity and is to be ruled by broad considerations of equity and justice * * * unfettered by technical rules ” (County of Oneida v. First Citizens Bank & Trust Co. of Utica, 264 App. Div. 212, 214). “ Duty, and not a promise or agreement or intention of the person sought to be charged, defines it. It is fictitiously deemed contractual, in order to fit the cause of action to the contractual remedy ” (Miller v. Schloss, 218 N. Y. 400, 407). Having alleged the ultimate facts and circumstances that the defendant had received money rightfully belonging to the plaintiff or that it is legally or equitably entitled thereto, a good cause of action for money had and received has been stated. (Belkor Knitwear Co. v. Posner, 78 N. Y. S. 2d 618, 620.)
*655The motion to dismiss the second cause of action is accordingly denied. It will not he necessary to serve an amended complaint; it may be marked by reference to the order to be entered hereon. The defendant will have 10 days in which to answer.
Submit order.