30 N.Y.S. 329 | N.Y. Sup. Ct. | 1894
This is an appeal from a judgment in favor of the-plaintiff, entered upon the report of a referee in a reference of a disputed claim under the statute. The plaintiff’s claim was for $1,000-given to the deceased, in 1884, for investment on a mortgage to be made by one Webster. The plaintiff claimed that the money was-not so invested, but appropriated by the deceased to his own use. That the money was left with defendant for investment in this intended mortgage, and that it was not so invested, no loan being made to Webster, was proved on the trial, and is, as we understand,, conceded by the appellant. No evidence of a return of the money by deceased, or its subsequent investment or application for the-benefit of the plaintiff, was given. The appellant contends that the facts proved were insufficient to authorize a recovery for the cause of action stated in the complaint, and that the plaintiff, to entitle himself to prevail, was bound to show how deceased had appropriated the money. It may be conceded that, in dealings between principal and agent, or master and servant, the law will presume that