2 Rob. 664 | The Superior Court of New York City | 1864
It is alleged in the complaint in this case, that while the first order of the court of common pleas remained unchanged, Hague, the predecessor of the plaintiff Genet, in pursuance of the direction contained in such order, paid A. T. Stewart and others, in June, 1857, the sum of $650; and that “said A. T. Stewart and others by their attorney, on or about” some (blank) “day of December, 1857, paid over to said defendant the whole of said sum of $650, to hold the same as such receiver; and that the defendant, pretending to have a right as such receiver to receive the same, did receive
It is not alleged in the complaint that Stewart and others delivered to the defendant the identical articles received by them as money, or that they paid him any sum of money as being that received by them. The terms “said sum of money," by themselves, cannot be construed as meaning the same coin or representatives of value. Indeed it could hardly be supposed that Stewart and others retained the money from June to December in the same form in which they received it. The plaintiffs, therefore, cannot recover in this action as in an action of trover, the identical money or representatives of value paid, whose form, or their property in it, had not been changed, at the time it was delivered to the defendant. Eor can they maintain it as one for money had and received by the latter expressly for their use, from Stewart and others, since there is no allegation that the latter paid it to him, or he received it for such purpose.
Stewart and others were liable to refund to the plaintiffs, the money they had received under the order as it was originally made, upon its modification on appeal, which destroyed their right to retain it. They could have been compelled to do so by action as well as by writ of restitution or seire facias. (Scott v. Swezey, 29 Barb. 87, and cases cited.) It is conceded that they could not recover back from the defendant directly, the money paid by them to him. On that point the cases cited by the plaintiffs’ counsel are good authority. (Goodall v. Lowndes, 6 Ad & El. 464. Goodman v. Sayer, 2 J. & W. 263. Sprague v. Birdsall, 2 Cowen, 419.) It is supposed, however, that indirectly hy means of this action, the de
All the cases which authorize the pursuit by the owner of property or its proceeds improperly disposed of by persons to whom it has been entrusted require some trust violated, or authority exceeded, or else a fraud committed out of which a trust may be created in equity, to warrant it. Story (2 Eq. Jur. § 1258,) lays down the rale in these words : “ Whenever the property of any party has been wrongfully misapplied or a trust fund wrongfully converted into another species of property, if its identity can be traced, it will be, held, in its new form, liable to the rights of the original owner or cestui que trust.” In a note the case of “property rightfully sold by an agent or trustee, provided the proceeds can be distinguished,” (Id. n. 3,) is added. The author bases his view upon a general proposition to the effect, that no mere change of the original state or forms in which property is subject to a trust, can shake off such trust, or give an agent or trustee who thus changes it, or any one who stands in his place, (excluding, of course, purchasers in good faith,) any interest in it free from such trust. These principles make two ingredients indispensable to such right of pursuit in equity of property and its proceeds into a new form, into which it may be wrongfully converted; first, there must have been a violation of a trust, express or implied, or abuse of authority; and secondly, the precise property or its proceeds must be kept separate from other property of the same kind, so as to be readily distinguishable. (Taylor v. Plumer, 3 M. & Sel. 574-576. Hanford v. Lloyd, 20 Beav. 310.) Judge Story admits the determination of the right “when the subject matter is turned into money, and mixed and confounded in a general mass of property of the same description.” (2 Eq. Jur, § 1259.) In this case there was no trust or authority created. The plaintiffs’ predecessor was ordered by a .court having jurisdiction to pay certain moneys to Stewart, &c. and he did so ; afterwards,' by a modification of such order, on appeal, he became entitled
The pleadings indeed present the bald case of money paid to one as his property who subsequently becomes bound to refund it, after he has voluntarily paid a like sum to a third party either as an individual or as an officer of court; without impressing on such last payment any specific character or condition. In'such case no privity could be created by any act of the party who received and paid such sum between the parties from and to whom he so received and paid it; and the separate liabilities of each to the other, therefore, remain as before.
The complaint, moreover, alleges that the sum in question was paid to and received by the defendant as receiver. Under such circumustances he was not bound to investigate the liability of the party paying it, to pay it. Having so received it un
Whether, therefore, the defendant received such sum indi- • vidually or as receiver, he is not liable to the plaintiffs in this action. This renders it unnecessary to discuss the question, whether they could sue for such sum without an assignment by their predecessor of their right of action. I do not see