¶1The demurrer was sustained at Special Term upon the ground that it was not alleged in the complaint that the money which was paid by the plaintiff at the request of the defendants was for the defendants’ use.
¶2It is true that the complaint does not state, in so many words, that it was for the defendants’ 'use, but the facts stated require such an inference. The 4th paragraph of the complaint alleges that the “ John R. Anderson Company, at the special instance and request of these defendants, paid the sum of $500 to the said MacKintosh & Company, and received from them an assignment of their aforesaid claim against these defendants.” The only element lacking in the statement of a cause of action for money paid by a plaintiff to a defendant’s use and at his request is an assertion that such payment was for the use of the defendant. We are, therefore, to examine the: other allegations in the complaint for the purpose of ascertaining whether the facts therein alleged require the inference that such payment was. for the use of the defendant. From the 1st paragraph of the complaint we learn that the defendants were the trustees of the Windsor Terrace Methodist Episcopal Church of Flatbush, Long Island,, and that they severally and individually executed a contract with the Weedon Plan and Construction Company of the city of blew York, whereby said .company was to construct for them a church building; and that the contract provided, among other things : “ That all bills for timber and lumber are to be paid by the trustees representing the said church, and all such bills áre.to be held by them as vouchers that the said timber ,and lumber is free from any lien. or encumbrance. The amount of such bills are to be deducted from the' payments falling due the Weedon Plan & C. Co.” The 3d paragraph alleges that the firm, of McKintosh & Co. delivered and .furnished for use in the construction of the church, upon the order of the Weedon Plan and Construction.Company, timber and lumber to the amount of $500; and it was this $500 which J. R. Anderson & Co. paid at the request of the defendant.
¶3*211It appears then that, under the contract made with the Weedon Plan and Construction Company, the defendants had obligated themselves to pay for all the timber and lumber necessary to be used in the construction of the church; that the Weedon Plan and Construction Company did order from MacKintosh & Go., for such purpose, timber and lumber of the value of §500, and such sum, under their contract, the defendants were obligated to pay. MacKintosh <& Có. could not have collected it of the defendants, because the contract was not made between them and the defendants, nor were they privies to the contract in any way. But the Weedon Plan and Construction Company, who ordered the timber and lumber of MacKintosh & Go., could, under their contract with these defendants, compel them to pay for it; and thus it is made to appear, from the facts alleged, that the §500 which John R. Anderson & Co. paid to MacKintosh & Co., was in payment for timber and lumber for which the defendants were bound to pay, and, therefore, such payment was for the use and benefit of the defendants.
¶4The interlocutory judgment sustaining the demurrer should be reversed, with costs, and. the defendant be- permitted to answer within twenty days upon payment of costs in this court and in the court below.
¶5Rumsey, Patterson and O’Brien, JJ., concurred.