238 A.D. 181 | N.Y. App. Div. | 1933
This is an appeal from an order denying defendant’s motion for judgment on the pleadings “ on the ground that the complaint in this action does not state facts sufficient to constitute a cause of action.”
The complaint alleges the following facts:
On or about the 22d day of March, 1926, the plaintiff was the owner and entitled to the immediate possession of certain milk and creamery plant equipment which was then installed in the milk plant and factory at Watt Flats, Chautauqua county, owned by a domestic corporation, the New York Milk Products Company, and on this date the plaintiff notified this corporation and its president, Hollen W. Rich, of his purpose and intention to remove said equipment from said plant, and demanded possession thereof.
Does tMs complaint state a cause of action? As to the actual pomt upon wMch this decision must turn there seems to be a paucity of authority in tMs jurisdiction. In so far as the somewhat indefimte
The question, therefore, arises whether this agent or bailee should be allowed to profit by the transaction at the expense of his principal or bailor. As an agent he owed single-eyed service to his principal, must serve him with utmost good faith and loyalty and should not be allowed to profit at his principal’s expense. (Elco Shoe Manufacturers v. Sisk, 260 N. Y. 100.) His act of taking out the insurance inured to the benefit of his principal. As a bailee he owed the duty to the bailor of reasonable care in preserving the property and that of either delivering it back to the bailor or to the ultimate purchaser, if the option of purchase contained in the lease were exercised, after having so preserved it. Under this relationship he should not be allowed to profit by the transaction at the expense of the bailor. Any surplus insurance moneys received by him over and above his own loss, in his hands constitute moneys held by him in trust for the owner of the property and the owner is entitled to recover for the same.
The complaint states a cause of action and the defendant’s motion was properly denied.
The order appealed from should be affirmed, with costs.
Hill, P. J., Rhodes, Crapser and Heffernan, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.