Jenks, J.:
This is an appeal from a judgment entered upon the dismissal of the complaint at Trial Term at plaintiff’s close. For a first cause of action the plaintiff complains that he delivered a quantity of milk *254to one McCarthy under an agreement that McCarthy would ship and would sell the milk with that of his own dairy to customers and would pay to the plaintiff out of each check received in payment his proportionate share, less commissions, but that McCarthy handed all the checks to the defendant, who collected and retained the proceeds, although at the time defendant knew or ought to have known that the plaintiff was entitled to his share of said checks. Plaintiff also pleads a demand upon the defendant and his promise to pay. The plaintiff gave evidence to sustain these allegations. The bill of particulars read in evidence by the defendant on cross-examination shows a regular allowance for the commissions. The defendant testified in his examination under a third party order in proceedings supplementary to execution, which was read in evidence by the plaintiff: “ I remember when the milk for which this judgment is rendered was being bought of Mikles (the plaintiff); I knew the milk came from Mikles, and I paid for this milk to McCarthy. I thought that the milk that came from Mikles was all paid for ; * * * I think I did tell him to buy this milk.” The plaintiff further testified that, after failing to receive his full due from McCarthy, he went to the defendant, told him of the relations with McCarthy, • that defendant said that he knew it, and also admitted that he had received all of the checks received' for the milk. Under the rule of Higgins v. Eagleton (155 N. Y . 466) it cannot be said that inferences could not be deduced from the testimony that McCarthy was the agent of the plaintiff to sell and to return to plaintiff his share of the proceeds, less the commissions ; that the defendant knew this, and that, notwithstanding, he received from plaintiff’s agent and has retained in payment of an. existing debt of McCarthy to the defendant, money which was due to the plaintiff from McCarthy. That the learned court conceded that the testimony might • be thus construed is apparent from these remarks incident to the motion to dismiss: “ But, taking it the strongest, way you can, he (the plaintiff) used him (McCarthy) as an agent of his own, McCarthy was the plaintiff’s agent to sell the milk and pay him the money, and he got into debt with Hawkins (the defendant), and instead of paying the plaintiff he used the ' money to pay his debt to Hawkins, and when the plaintiff brought Hawkins’s attention to that fact, he said : c It is an honest debt, there is no doubt what*255ever that he owes you, and I will see that you are paid,’ or ‘ I will pay you.’ * * * Now the law says that you cannot collect upon that promise unless you get him to put it down in writing.” Evidently the dismissal as to this cause of action was based upon the final sentence. I think that proof of an express promise was not necessary. If the defendant had knowingly received and retained the money of the plaintiff, then an action might lie therefor. I think that a prima facie case was made out and that the complaint may be read as sufficient to maintain it. (Roberts v. Ely, 113 N.Y. 128" court="NY" date_filed="1889-03-19" href="https://app.midpage.ai/document/roberts-v--ely-3577351?utm_source=webapp" opinion_id="3577351">113 N. Y. 128; Seeber v. People's Building Loan Assn., 36 A.D. 312" court="N.Y. App. Div." date_filed="1899-07-01" href="https://app.midpage.ai/document/seeber-v-peoples-building-loan--saving-assn-5185278?utm_source=webapp" opinion_id="5185278">36 App. Div. 312, 316.) It would not be a defense that the money was received by the defendant in payment of an existing debt of McCarthy unless the defendant had received the money innocently and without knowledge or means of knowledge that his debtor had no rightful ownership therein. (Heidenheimer v. Boyd, 15 A.D. 580" court="N.Y. App. Div." date_filed="1897-04-15" href="https://app.midpage.ai/document/heidenheimer-v-boyd-5182136?utm_source=webapp" opinion_id="5182136">15 App. Div. 580, citing Newhall v. Wyatt, 139 N.Y. 452" court="NY" date_filed="1893-10-17" href="https://app.midpage.ai/document/newhall-v--wyatt-3630891?utm_source=webapp" opinion_id="3630891">139 N. Y. 452.) Further, if, as the defendant testified, he had given the money for the milk'to McCarthy, it may be fairly inferred that he received money due to plaintiff and had then returned it to McCarthy to be paid to the plaintiff. But that in itself does not establish a defense in view of the testimony of the plaintiff that the agreement between him and McCarthy was that the latter should pay plaintiff’s money directly to the plaintiff. Whether it may be inferred from the course of dealing that McCarthy had authority to pay all proceeds first to defendant and then to receive plaintiff’s share from the defendant as payment to the plaintiff, was a question for the jury. (Lamb v. Hirschberg, 1 Misc. 108" court="None" date_filed="1892-11-07" href="https://app.midpage.ai/document/lamb-v-hirschberg-5545377?utm_source=webapp" opinion_id="5545377">1 Misc. Rep. 108, and authorities cited.) I express no opinion as to the liability of the defendant, but I advise reversal on the ground that the dismissal of the complaint at the close of plaintiff’s case was error.
Judgment and order reversed and new trial granted, costs to abide the event.
All concurred, except Goodrich, P. J., dissenting, and Hirschbeeg, J., not sitting.
Judgment and order reversed and new trial granted, costs to abide the event.