69 A.D. 606 | N.Y. App. Div. | 1902
Without dissenting from the conclusion reached by the learned judge at Special Term, “that the respondents acted with entire honesty in their dealings with the petitioner,” we do not concur in his view that they were responsible only for the amount they retained of the $500, and should not be answerable for the portion thereof which they paid to Welch.
It is conceded that the infant was entitled to two-thirds of the $500; and the legal obligation resting upon the respondents, after they received the money, to pay it to her or her guardian, was not discharged by the payment to Welch. Were the latter before the court, exact justice would require that he should be compelled to disgorge his ill-gotten gains; but the fact that he was the one mainly responsible for the fraud practiced on the infant, is no bar to the recovery of what was due her from the respondents.
We think, therefore, that the court should have directed the respondents to pay the two-thirds, together with interest from the date of the demand. The order accordingly should be modified so as to ■ direct the payment of $338.33, with interest from June 17, 1900, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. . . " ’
Present:— Yan Brunt, P. J., O’Brien, McLaughlin, Hatch and Laughlin, JJ. . ' . .
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to the appellant.
Note.—The rest of the1 cases of this term will he found in volume 70. App. Div.— [Rep.