30 Barb. 238 | N.Y. Sup. Ct. | 1859
The action is for money had and received by the defendant, to the use of the plaintiff. The right of the plaintiff to maintain this action is entirely settled, so far at least as this court is concerned, by an unanimous decision in the case of Murdoch v. Aikin, (29 Barb. 59.) It cannot be necessary to review the grounds of that decision. The principle is elementary that where one person receives money for another, and the law makes it the duty of the person thus receiving it to pay it to the person for whom or for whose use it is thus received, a promise to pay it in accordance with the duty is always presumed, and a privity established as matter of law, between the parties. It is unnecessary to cite authorities for so plain and well established a proposition. The defendant had no right to receive the money for any purpose other than to pay it over to the plaintiff and others similarly situated; and his receipt to the county treasurer shows that he received it for that purpose and no other. His duty to pay the moneys thus received, in satisfaction of the bonds, is prescribed by statute. (Session Laws of 1857, p. 546, § 4.) After thus receiving the money, he held it as trustee or depositary, for the plaintiff and other bondholders, and should not be permitted to go behind the payment of the
T. R. Strong, Smith and Johnson, Justices.]