#### Emma Moore, Resp’t, *v.*Adam Craig, App’lt.

*(City Court of Brooklyn,*

*General Term,*

*Filed February 26, 1889.)*

1, Pleadings—Action fob money deposited with defendant — When PEO OF OF DEMAND NOT NECESSABY.

On a suit for monejr deposited with defendant by plaintiff, where the defendant sets up in his answer a different transaction from that alleged in the complaint, and where, as a further reason therefor, the defendant, before the suit was commenced, gave plaintiff a statement of account between the defendant and the husband of plaintiff, in which account he had credited the husband with the amount received from plaintiff, *Held,*not necessary for the plaintiff tn prove, at the trial, a demand for the money before suit was brought, although the complaint alleged that such demand had been made.

*1122. Evidence—Witness—When jury may disbelieve.

Where the testimony of the defendant at the trial was in direct conflict with that given by him in supplementary proceedings, he cannot complain if the jury disbelieve him.

*Anthony Barrett,*for resp’t; *Dailey and Bell,*for app’lt.

Clement, Ch. J.

The plaintiff, in the complaint in this action, alleged that, on or about April 19, 1886, she deposited with the defendant the sum of $1,284.56, by delivering to him a check for that amount drawn to her order and endorsed by her, on which check the defendant collected the said sum, and that, on or about May 1, 1887, plaintiff demanded said money of the defendant, who refused to pay over the same. The defendant, in his answer, ' admitted that the plaintiff deposited the check with him, and denied all the other allegations of the complaint, and, for a further answer, alleged that the money represented by the check was placed, by the plaintiff, in defendant’s hands to be applied on account of a business arrangement which existed between the defendant and the husband of the plaintiff, and the defendant further set up that the said money had been so applied.

I have set forth the substance of the pleadings, because the counsel for the defendant contends that the action was for conversion and not to recover a deposit. The foregoing statement of the pleadings seems to answer conclusively the claim of counsel in that respect. The action was brought to recover a deposit, and a demand of repayment-was necessary before an action could be maintained to recover the same, unless some special circumstance or reason excused such demand. The plaintiff failed to prove a demand on the trial, and a motion to dismiss was made for that reason, which motion was denied, and an exception duly taken. After consideration, we think that a demand was unnecessary in the present case, because the defendant alleged in his answer a different transaction, and we so-hold on the authority of *Carroll*v. *Cone*(40 Barb., 220), which case was affirmed in the court of appeals. See *Baker*v. *Kenworthy,*41 N. Y., 216.

We also think that a demand was not necessary, for another reason. It was an undisputed fact in the case that the defendant, before this action was commenced, called on plaintiff and handed her a statement of the account between him and her husband, and informed her that, in that statement, he had credited the husband with the-amount received on the check, $1,284.56.. The statute of limitations would commence to run on the plaintiff’s claim after the notice that the deposit had been credited on her husband’s account.

*113The verdict was not against the weight of evidence. The testimony of the defendant was in direct conflict with that given on his examination as a witness in supplementary proceedings, and he cannot complain because the jury did not believe him.

The judgment and order denying a new trial must be affirmed, with costs.

Van Wyok, J., concurs.