266 A.D. 160 | N.Y. App. Div. | 1943
The appellant is a lay person. The respondent is a seasoned attorney. The respondent conducted some very difficult litigation for the appellant to a successful conclusion. Involved in the litigation was the appellant’s right to recover on policies of life insurance and a bank deposit which she claimed had been given to her by a deceased friend. Upon the recovery of the bank deposit, appellant paid to the respondent his fee in that branch of the litigation. Upon the recovery on the life insurance policies, which amounted to about $14,000, the appellant, forgetful of her duty to her attorney, notified the
The appellant sued the respondent for conversion and he answered and defended the suit. The trial court struck from the complaint the allegations as to conversion on the ground that the appellant had not proved a demand for the return of the money. The case went to the jury on the theory of money had and received. The jury found for the plaintiff.
While that action was pending, the respondent filed a petition in bankruptcy in which he listed that suit as a disputed claim. He was adjudicated a bankrupt prior to the trial of said action. Appellant filed a claim on her judgment with the trustee but received nothing on account thereof. The respondent was relieved from his dischargeable debts on October 15, 1941.
In September, 1941, the appellant instituted proceedings supplementary to judgment upon her judgment for the purpose of examining the respondent as to his property. The respondent then moved to vacate the order for his examination. The motion was granted on the theory that the judgment had been discharged in bankruptcy. We are to review the order granting the motion.
It was not necessary to allege or prove a demand because the respondent had notified the appellant that he would not pay over the money to her. A demand is required only in cases where it is necessary to turn a lawful possession into an unlawful one. (Bernstein v. Warland, 33 Misc. 280, 282; Employers’ Fire Ins. Co. v. Cotten, 245 N. Y. 102,105.)
The presentation of a claim in bankruptcy is not deemed an election of remedies that will bar a subsequent action in tort for the unsatisfied portion of the creditor’s claim. (Poswick v. Cutten, 258 App. Div. 218, 220.) The fact that appellant retained the check sent to her by the respondent did not amount to an accord and satisfaction. (Locomobile Co. of America v. Nichols, 167 App. Div. 849, 853.)
The inference is clear that the respondent received the money from the insurance company for the sole purpose of paying to himself the amount of his fee and of remitting the balance to the appellant. Under this situation, he would have no charging lien on the fund and the conclusion that he converted the money is inescapable. That he converted this money is also borne out by the fact that he failed to pay it over to the appellant upon the recovery of her judgment against him. So far as appears, he did not include the $505 among his assets in his bankruptcy schedules.
The order should be reversed on the law and facts, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.
All concur, except Cbosby, P. J., and McCubn, J., who dissent and vote for affirmance. Present — Cbosby, P. J., Cunningham, Taylob, Dowling and McCubn, JJ.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.