No. 15 | 2d Cir. | Jan 29, 1912
The cause of action against the defendant Brockway, stripped of all irrelevant matter is as follows:
That he was a director of the Mutual Reserve Bund Association from January, 1896, until .January, 1907. That in the year 1898 he obtained, in fraud of the association, various amounts of money belonging to it, amounting in all to $6,500, under pretense that said moneys were due him as salary. That said moneys were received without consideration, no service being rendered therefor and it being intended that no service should be rendered therefor by the defendant. That the said defendant, by receiving and so wasting the said money of the association, became liable for the amount so taken by him.
That these allegations state a good cause of action at law against Brockway we have no doubt; all the rest is surplusage.
Upon proving the case thus stated, the plaintiffs would have been entitled to a judgment for the full amount taken from the association. That the money was subsequently handed over to Burnham and that it was taken pursuant to a scheme to defraud entered into by the two men, is, in our judgment, wholly irrelevant. A thief who has stolen the money of his employer can hardly plead as a defense that he handed it over to some one else. Suppose the action had been at law; what defense could the defendant plead? That he took the money pursuant to a conspiracy with Burnham to rob,the company? Surely not! Such a defense would have been stricken out as irrelevant and frivolous. Could he allege that two months afterwards he handed the money over to Burnham? Such a defense would not avail for a moment.
Burnham might have been sued, it is true, but he is not a defendant in this action. The allegations of the bill relating to Burnham. could not be used as a defense, do not strengthen the case against Brockwav, and are not germane in any way to the cause of action against him.
In effect, the receivers say to Brockway, “You unlawfully took from the association $6,500 which belonged to it and to which you had, and have, no right or title. We demand that you pay it back.” No amount of ingenuity or sophistry can convert such an action into an action in equity.
The decree should be reversed and the demurrer should be sustained with costs.