120 N.Y.S. 487 | N.Y. App. Div. | 1909
The defendant appeals from a judgment upon a verdict rendered by direction of the court.
The action is for the conversion of a check deposited with defendant by one A. E. Hoyt. The plaintiff being, on April 25, 1907, the owner of two houses on West Twenty-first street in the city of New York, a mortgage upon which was being foreclosed, and wishing to
The action is for damages for the conversion of this $4,000 check. The check was dated May 10, 1907, drawn by Van Sant to his own order, and indorsed by him to the order of plaintiff.' Hoyt received the check, indorsed it “Pay to the order of A. E. Hoyt, Julia W. Porges,” and on May fourteenth with it opened an' account with defendant. The plaintiff, who was herself at the time a depositor with- defendant, says of Hoyt’s signature of her name: “ That signature is an attempt at an imitation of my signature in my opinion. I would not consider it a fair imitation.” Afterwards Hoyt made deposits and withdrawals from the account, and on October 5, 1907, shortly before this action was commenced, had a credit balance of $509.37. Plaintiff learned on July 31, 1907, of Hoyt’s action in depositing the check, but gave no notice to defendant until she commenced this action on or about October 17,1907. The jury, in answer to specific questions put to them by the court, found that plaintiff did not exercise due diligence in notifying the defendant and that, in consequence of her silence, it was damaged to the extent of $500. The verdict directed by the court was for $4,000 with interest, less the $500 damage suffered by defendant. In considering the questions involved in this appeal.it is desirable to keep in mind the' fact, strongly insisted upon by plaintiff, that this is an
“Apr. 25, 1907.
“ For and in consideration of one dollar, to me in hand paid, the receipt whereof is hereby acknowledged, I, Julia W. Porges, individually and as Executrix of" the. late John H. Porges, do hereby authorize Adelbert E. Hoyt to dispose of my property Ho. 218 and 220 West 21st Street, Borough of Manhattan, City of Hew York, at such price and under such conditions as he may see fit and to accept either cash or other property, or both, and take any property subject to existing encumbrance (if any) on said property so taken in exchange, and I hereby give to said Hoyt my full power of attorney to sign contracts and to execute any and all papers in connection therewith and also full authority to sign, sell and manage any property so accepted in exchange, and to pay out any necessary money in settlement of. interest, taxes, water, salaries or other bills or court costs and commissions for the sale of any of the said properties, the same as if I did so myself, it being understood that the said 21st Street property is now under foreclosure, and money must be paid in settlement in order to deliver deed of same, and that I shall lose my entire equity in same unless said Hoyt can effect some sale or exchange whereby some benefit may accrue, and, therefore. I give unconditional and unlimited authority to him to do anything he deems advisable with said property, and any money that must he paid in excess of what may or may not be received in said transaction I will pay to him in cash when called upon without accounting or defense of any character.
“ (The following in pencil: Irrevocable under any condition.)
“(Signed) JULIA W. PORGES..
“ Witness -
“ Mary W. Lillie.”
It would be difficult to draw a more general and comprehensive-power than.this so far as concerns the selling of plaintiff’s property and disposing of .the proceeds. Hoyt 'was not1 only authorized to
The judgment appealed from must be reversed and a ,new trial granted, with costs to appellant to abide the event. •
McLaughlin and . Houghton, JJ., concurred; Ingraham and Clarke, JJ., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event. . ... •