28 N.Y.S. 709 | New York Court of Common Pleas | 1894
This is an action for the conversion of 200 shares of stock, the property of the plaintiff, held by the defendants for the plaintiff’s account in their capacity of stockbrokers. ■ That error is predicable of the referee’s findings of fact upon the evidence
The recovery rests, not upon any question as to the degree of care which was required of the defendants in the performance of their duty to the plaintiff with its correlative responsibility for negligence, but proceeds upon the theory that the act of Stout in exercising unwarranted dominion over the property in question was attributable to the defendants as his principals. The referee has found that no negligence existed in the appointment and continued employment of Stout by the defendants, so consideration as to the duty of preserving the property, which existed by reason of the nature of the contract, is unnecessary. In an action of trover it is not, as in assumpsit, the omission which forms the gravamen; it is the act (Willard v. Bridge, 4 Barb. 361); and, when such act may be established, a bailee, whether for reward or not, is liable for the conversion of the property bailed (Esmay v. Fanning, 9 Barb. 189). Bearing this distinction in mind, it is apparent that the rule of liability for the theft of a servant in the bailee’s employ, as laid down in Foster v. Bank, 17 Mass. 479, and similar cases in assumpsit, is not to serve as a criterion in such an action as the present. The determination of the learned referee was that under their contract the defendants had assumed the duty of delivering this stock to the plaintiff, and, for the purpose of fulfilling their duty, authority was by them delegated to their agent. Therefore, a violation by this agent of the principals’ duty so assumed and delegated is attributable to the principals as their act. The obvious