18 Abb. N. Cas. 106 | NY | 1886
The New York and Brooklyn Ferry Company, a corporation, owned and operated ferries between the cities of New York and Brooklyn, from 1864 to May 1,1879, and the New York Ferry Company, a successor to the former company, owned and operated the same ferries from the latter date to the commencement of these actions. The actions were consolidated and tried together as one action, and one judgment was entered for the joint benefit of both plaintiffs, and therefore I will speak of them in this opinion as one action.
The complaint alleges that from about the 1st day of December, 1870, to the 16th day of January, 1883, the defendant John H. Moore was employed by the plaintiff as ferry master, and that as such he received a large amount of money for tolls, which it was his duty to pay over to the plaintiff; that he had retained and converted to his use a large amount of such tolls, and had deposited the same in his own name, and in the name of his mother, in various savings banks, which were made defendants in this action; that he had also purchased certain real estate therewith, which is particularly described in the complaint; that the
John H. Moore and Margaret Moore, his mother, severally answered the complaint, putting in issue the material allegations thereof. The issues thus joined were brought to trial at a special term of the supreme court, and the court found that Moore entered the employ of plaintiff in 1866, as night watchman; that in 1867 he was made bridge-tender and gate-man, and December 1, 1870, was made ferry master, and continued in that capacity until he was discharged, January 17, 1888 ; that it was his duty to receive fees or tolls for teams and persons crossing plaintiff’s ferries, and pay over the whole thereof to the plaintiff; that in his capacities above mentioned he collected and received large sums of money; that he did not pay over the whole thereof to the plaintiff, nor render to it. a full, complete and fair statement thereof, but fraudulently retained and converted to bis own use a' large amount of the moneys so received for the plaintiff, amounting to at least the sum of $22,869.68, which was deposited with other moneys in the savings banks, and invested in the real estate mentioned in the complaint, and it ordered judgment for the plaintiff, in respect of that sum, substantially according to the prayer of the complaint. The defendants, Moore, having filed exceptions to the findings and conclusions of the court, appealed to ‘the general term, where the judgment of the special term, was reversed, and a new trial was ordered for errors of law only. The plaintiff then appealed to this court.
It is not disputed that upon the facts found the plaintiff -
Moore was born in 1841, of poor parents. For several years prior to his death, about the year 1856, his father was a day laborer, and his mother did washing for other people in the way ordinarily done by poor women; Before the death of the father his family consisted of his wife, the defendant Moore, and three young daughters, and they lived in a cheap house, where they hired three rooms. The daughters began to work at about the age of fourteen; the eldest about 1850, continuing so to do until her marriage, in 1857; the second one about 1860, continuing to do so until her marriage, in 1867; and the youngest, about 1861, continuing so to do until her death, in 1866. In 1862 the son, John H., enlisted in the army, and prior to that time the family were apparently poor, having no visible property except a small amount of cheap furniture. When John H.
Where did this considerable fortune, accumulated with successive accretions during the year he was handling the moneys of the plaintiff, come from ? There is some further evidence to show. A witness gave some evidence; tending to show that he stole five dollars from the drawer in the plaintiff’s ferry-house in 1873. Another witness, who was
This evidence, so far as it tends to show a misappropriation by Moore of plaintiff’s money, is mainly circumstantial. Some of the circumstances are not very strong, and stand
There is no rule of law which requires the plaintiff in a civil action, when a judgment against the defendant may establish his guilt of a crime, to prove his case with the same certainty which is required in criminal prosecutions. Nothing more is required in such cases than a just preponderance of evidence, always giving the defendant the benefit of the presumption of innocence. Where a judgment for the
We have thus far brought into view only the evidence given on the part of the plaintiff, and ha,ve yet to notice that relied on by the defendants. Moore’s account of his great accumulation of property is that a large share of it was given to him by his mother, and she is produced as a witness to prove it. Her story is as follows: She and her husband came to this country from Ireland in 1836, bringing with them 500 guineas. It does not appear what was done with this money, and it is not claimed that it was ever deposited in bank or invested. She kept boarders for about thirteen years, and during a portion of the same time a retail liquor store. Her husband for several years bought and sold cattle and hogs, and butchered them, and in these kinds of business they made money, which was kept by her. All these kinds of business terminated before 1853. After that her husband, who sometimes indulged in too much drink, worked until his death, in 1856, in a distillery as a day laborer for twelve dollars per week. What her children earned was brought to her and saved, although prior to 1856 it is certain from their ages that they could have earned but very little. In 1856, when her husband died, she had accumu
This money was all accumulated prior to 1854, and, as it was accumulated, was put and kept in a wooden .chest under or behind her bed. It does not appear that any member of her family knew that she had this money, and no other witness is produced who ever saw it or heard of it. She kept this large sum of money in that chest, unknown to any one,, until 1870. During all that time she lived in poverty, and she continued to do washing for other people until three years before the trial of this action, when she was seventy-six years old. She did not deposit the money in savings-banks for fear she. might lose it, although she lived near the Williamsburgh Savings Bank, and knew it was a very strong bank with an immense surplus. Although she was afraid to deposit the money in banks, she kept the bank-bills— most of them for twenty years—in a frail wooden box, through the financial crisis of 1857, and until long after such bills had gone out of circulation and been supplanted by the national currency, and the state banks had ceased to do business. She kept the gold notwithstanding the enormous premiums which it had reached until the premium had been mostly swept away. While she distrusted the banks; for her own money, she was careful to deposit the money earned by her son before he entered the employment of the plaintiff, from time to time as he earned it, in a savings bank. Although she kept this money so long—some of it certainly thirty years—in 1870 she began to dole it out to her son, at first in small sums, and then in larger sums, until she ■ had given all of it to him. She suddenly, in 1870 acquired confidence in banks and in her son, and began to dispose of the hoarding of many years, and still took in washing to earn money. It is also a singular coincidence that she began to swell her son’s bank account at the same time when the complaint charges that he began to embezzle the moneys of the plaintiff.
We see no reason to believe that the trial court committed any error to the prejudice of the defendants, in the amount awarded to the plaintiff. We are, therefore, of opinion that the order of the general term shonld be reversed, and the judgment of the special term affirmed, with costs.
All concur, except Rapallo, J., absent.