Opinion
October 2, 1997
Appeal from Supreme Court, New York County (Stephen Crane J.)
The operative allegations of the complaint are that defendant, a bank, received the proceeds of checks that plaintiff made payable to defendant, that plaintiff never duly authorized defendant to make payment of the funds received to any party whatsoever, and that defendant has refused plaintiff's demand to return such funds received by defendant but "belonging" to plaintiff. These allegations were correctly held insufficient to state a cause of action for money had and received in that they failed to give notice of why money represented by checks made payable to defendant rightfully belongs to plaintiff ( see, Stephans v. Apostol, 17 A.D.2d 982, 983, citing, inter alia, Belkor Knitwear Co. v. Posner, 78 N.Y.S.2d 618, 620). The relevance of the allegation that plaintiff did not authorize disbursement of the money is not apparent absent an allegation that plaintiff maintained an account with defendant or is otherwise entitled to the money. Since plaintiff asserts that he has already served an amended complaint and does not request leave to do so, we see no reason to modify to grant such leave. We have considered plaintiff's other arguments and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Williams, Tom and Colabella, JJ.