De Fino v. Stern

38 N.Y.S. 616 | N.Y. App. Div. | 1896

Williams, J.:

There seems to be no doubt upon the evidence that the check was delivered by the insurance company to defendant for the plaintiff. It can hardly be said it was deposited with the defendant for the purpose of clearing the title from the lien. The insurance company dealt with him as one authorized to act for the plaintiff, and he assumed to have such authority and to so act. No other conclusion could fairly be drawn from the evidence ; but if different inferences or conclusions could be drawn from the evidence the jury might, at least, have drawn the conclusion we have suggested, and it was for the jury and not the court to draw the conclusion. There is no evidence to show how the defendant happened to have a forged satisfaction of the lien to deliver to the insurance company and so obtain the money in payment of the lien. The statement by defendant to plaintiff’s witness, drawn out on the cross-examination, is no evidence of the facts therein stated. The statements were mere hearsay. The money, when paid to defendant, was the money of plaintiff, obtained from the insurance company upon a forged satisfaction piece.

The defendant assumed to be, but was not in fact, the agent or attorney for plaintiff. It is true the plaintiff was not obliged to follow the money into defendant’s hands and seek to recover it from him. The insurance company did not relieve itself by paying the money to defendant, and the plaintiff’s lien was not satisfied by the filing of the forged satisfaction piece. The plaintiff might have proceeded to enforce its lien, and the insurance company, as a result, would have been compelled to again pay the money to plaintiff and itself look to defendant for a return of the money which it had paid to him. But the plaintiff had a right to claim the money in defendant’s hands as his and recover it from him.

The defendant assumed to act as the agent and to receive the money for the plaintiff as his agent, though in fact not authorized to do so. The plaintiff might have repudiated the agency, but he chose to ratify it and to claim the money as his. He demanded that it be paid over to him. The defendant refused to pay it over, and by such refusal he was guilty of a conversion thereof. This was the theory upon which the complaint was drawn, and this was the state of facts proved at the trial. It is said that there could be no recovery, because the defendant had a lien upon the moneys for services as attorney which had not been paid. We do not find any such defense alleged or suggested in the answer, nor was there any proof at the trial of any such lien, and when the money was demanded of him he made no suggestion that he had any such lien. He merely said he refused to pay the money on the advice of counsel.

Upon the facts as proved at the trial the plaintiff was clearly entitled to recover as for money converted by the defendant. The court erred in taking the case from the jury and directing a dismissal of the complaint.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.