101 Misc. 574 | N.Y. Sup. Ct. | 1917
The plaintiff, owning a bond and mortgage securing $2,500, on April 9,1915, assigned them to the defendant Hanser, and on May 13, 1915, the latter executed an instrument reading as follows:
“ Know all men by these presents, that I, Julius M. Hanser, of the borough of the Bronx, city and state of New York, do hereby affirm and declare that the mortgage made by E. Marion Toussaint to Andrew Dressel, on the 19th day of November, 1914, and assigned by*575 Mm to the said Julius M. Hauser on the 9th day of April, 1915, is to belong to the said Andrew Dressel, and that the said Julius M. Hanser makes no claim to the same of any kind.
“ In witness whereof I have hereunto set my hand and seal this 13th day of May, 1915.
[l. s. ] “ J ulitis M. Hauseb. ’ ’
The defendant subsequently refused to reassign the bond and mortgage toxthe plaintiff, who thereupon brought this action to procure a decree requiring reassignment and an accounting of interest received by the defendant, with incidental injunctive relief. ■ -It appeared upon the trial that no consideration passed from the defendant, the plaintiff admitting that h,e had made the transfer in order to put the bond and mortgage out of reach of a plaintiff in an action that had been brought against him, the plaintiff here, for negligence. The plaintiff is a milk dealer, and the defendant appears to have been engaged in a small.and casual way in the real estate business. The two were friends, but not intimates, the plaintiff Mmself denying that they were “ close friends,” and there is no proof, nor is there any probability from what has been proved, that there was any relationship between them of special confidence or trust. According to the plaintiff, the defendant advised the making of the assignment, and, as the defendant offered no proofs but rested on the plaintiff’s case, the plaintiff’s testimony in that regard is entitled to credence. That actual trust was reposed in the defendant by the plaintiff perhaps goes without saying, else the plaintiff would not have made the transfer to Mm. But that is the trust of mere friendship, and far from that of fiduciary relationship, as, for example, that existing in the case of Ingersoll v. Weld, 103 App. Div. 554. As was said by Talcott, J., in Renfrew v.
Judgment accordingly.