| N.Y. Sup. Ct. | May 15, 1891
The judgment has been entered, upon the decision of the tice presiding at the trial, for the recovery of the sum of $245, and interest thereon from the 10th of April, 1883, and the costs of the action. The defendant challenges the correctness of this recovery on various grounds, which will be examined, so far as that appears,to be necessary for the determination of the appeal. The complaint charges that the plaintiffs, by an instrument in writing, appointed the defendant as their attorney in law and fact, to recover moneys from the United States belonging and accruing to Moses H. Grinnell and his estate, of which they were the executors, and that he accepted such appointment, and afterwards collected this sum'of money, which, upon being requested by them to pay, he wrongfully refused to pay, and has not paid, nor any part thereof. There was no charge that the money had been fraudulently embezzled or misapplied or converted by the defendant; and the omission to make proof to that effect did not avoid the right of the plaintiffs to maintain the action, under anything contained in section 549 of the Code of Civil Procedure. As the cause of action was alleged, all that was required to sustain it was that the defendant had been employed in the manner averred, and had collected the money, and refused on demand to pay it over, and the proof tended to maintain each of these facts. It was within the scope of the complaint, and free from all substantial variance with it. The answer denied that the defendant received the money, or was employed by the plaintiffs to receive it, as their attorney at law. That he was employed as their attorney in fact, and” received the money in that capacity, was not denied, and consequently stood admitted upon the pleadings. The evidence also tended directly to prove that he did act as the attorney for the plaintiffs, and received this money from the collector of customs at the city
A demand of the money was a necessary fact, as part of the plaintiffs’ case. Rathbun v. Ingals, 7 Wend. 320" court="N.Y. Sup. Ct." date_filed="1831-05-15" href="https://app.midpage.ai/document/rathbun-v-ingals-5513739?utm_source=webapp" opinion_id="5513739">7 Wend. 320; Southwick v. Bank, 84 N.Y. 420" court="NY" date_filed="1881-03-08" href="https://app.midpage.ai/document/southwick-v-first-national-bank-of-memphis-3589408?utm_source=webapp" opinion_id="3589408">84 N. Y. 420, 433, 434. And the evidence given by the witness Anthony was proof of the making of that demand, from which the fact very well could be as it was found by the court; and its effect was not changed by combining with it the further sum included in another action. Zimmerman v. Erhard, 83 N.Y. 74" court="NY" date_filed="1880-12-01" href="https://app.midpage.ai/document/zimmerman-v--erhard-3593853?utm_source=webapp" opinion_id="3593853">83 N. Y. 74, 78. At that time the right of action accrued, and there was no evidence that it accrued before then, and, as the action was brought within six years after that demand, it was within the time prescribed by the statute. There was no evidence that the plaintiffs knew that the defendant had received the money before that time, and the statute of limitations did not previous thereto begin to run. Code Civil Proc. § 410, subd. 1. The defendant proved that an action had been prosecuted and maintained by the plaintiffs against him in the city court of the city of New York, for the sum of $1,778.95, and upon which he relied as a bar to this action. But that appears to have been a separate and distinct collection from that forming the cause of action in this suit. It was money collected from the treasurer of the United States in May, 1885, upwards of two years after the collection of the money now in controversy; and for the recovery of each sum a separate right of action vested in the plaintiffs. McIntosh v. Lown, 49 Barb. 550" court="N.Y. Sup. Ct." date_filed="1867-03-04" href="https://app.midpage.ai/document/mcintosh-v-lown-5461526?utm_source=webapp" opinion_id="5461526">49 Barb. 550, 557; Zimmerman v. Erhard, 83 N.Y. 74" court="NY" date_filed="1880-12-01" href="https://app.midpage.ai/document/zimmerman-v--erhard-3593853?utm_source=webapp" opinion_id="3593853">83 N. Y. 74, 78. The recovery in that action was therefore no defense to this suit.
It did not appear by proof that any law of the United States had been violated in employing the defendant to receive this money, or in its collection by him. There was some reason for believing that the testator, as United States collector, had been deprived of his right to it, as a part of the forfeiture from which it proceeded. But the treasury department, from the fact of its payment, appears to have become satisfied that this was not its condition, and therefore, paid the money to the defendant; and it is to be presumed, in the condition in which the proof was left at" the trial, that it was lawfully so paid. But, if the fact had been as it was alleged by the defendant, it would be unavailable to him; for after he collected the money, in the course of his employment by the plaintiffs, he could not legally resist their right to recover
Exceptions were taken to the refusal of the court to find as proved certain requests presented by the defendant; but, as they were not of such a character as to change the,result, even if they had been found, the defendant was not injured by these refusals. The facts which were found, and were sufficiently proved, fully and completely disclosed the defendant’s liability, and nothing transpired relieving him from that result. The judgment should therefore be affirmed, with costs.