147 N.Y.S. 78 | N.Y. App. Div. | 1914
The complaint alleges that at the city of New York on the 3d day of November, 1913, the plaintiff made his four promissory notes, all dated the 3d day of November, 1913, and all payable to the order of Benjamin A. Levine, the above-named defendant, two of which notes were for the sum of $1,000 each, payable three months after their date, and two of which notes were for the sum of $1,500, each payable four months after
That each of the said notes was delivered to the said Benjamin A. Levine without consideration from him, but for the accommodation of this plaintiff, and under an agreement between the said plaintiff and defendant whereby the defendant was to procure the discount of the said notes for and on account of the said plaintiff, and to pay over the proceeds thereof to plaintiff.
On information and belief that almost immediately thereafter and without the knowledge of this plaintiff the said defendant procured the said notes to be discounted and received as the proceeds thereof the sum of $4,915, which said sum the said defendant has embezzled and has wrongfully converted to his own use, and has not paid over to the plaintiff any part thereof, to plaintiff’s damage in the sum of $4,915.
Upon said complaint and accompanying affidavits an order of arrest was issued which set forth “that a sufficient cause of action exists in favor of the above named plaintiff against the above named defendant, Benjamin A. Levine, and that the case is one of those mentioned in section 549 of the Code of Civil Procedure; and that the ground of arrest is the conversion or misapplication of money received by the defendant as the agent and for and on account of the plaintiff in a fiduciary capacity, in that the plaintiff delivered to the defendant his promissory notes to the amount of $5,000, which defendant promised and agreed to procure to be discounted for the benefit of plaintiff and to return and deliver the proceeds thereof immediately to plaintiff, and that defendant procured the discount of the said notes, concealed the same from plaintiff and has wrongfully and fraudulently embezzled and appropriated the proceeds thereof, amounting to the sum of $4,915 to his own use.”
The defendant moved to set aside the order of arrest upon the papers upon which same was granted, and the motion was granted upon the ground that the complaint does not state facts showing the commission of a wrongful act by the defendant.
In Moffatt v. Fulton (132 N. Y. 507) Judge Vann said: “ If, therefore, the complaint under consideration sets forth facts
In MacDonnell v. Buffalo L., T. & S. D. Co. (193 N. Y. 92) Werner, J., said: “ The rule that one who comes lawfully into possession of property cannot be charged with conversion thereof until after a demand and refusal is too well established to justify extended discussion. * * * But it has no application in a case where the lawful custodian of property commits an overt and positive act of conversion by an unlawful sale or disposition of the same. (Pease v. Smith, 61 N. Y. 180.) So long as the defendant was in possession of the bonds, under circumstances which might have made that possession lawful or unlawful at its will, a demand and refusal were necessary to put it in the wrong, but when it assumed to transfer the bonds * * * it committed an act which was in hostility to the right and title of the plaintiff. This was a distinct and unequivocal conversion. It was a wrongful taking, which at once created a cause of action in favor of the owner of the bonds. No demand was necessary. The sole object of a demand is to convert an otherwise lawful possession into an unlawful one. In such a case the refusal furnishes the only evidence of a conversion.”
Saratoga Gas & Electric Light Company v. Hazard (55 Hun, 251; affd., 121 N. Y. 677) was an appeal from an order denying a motion to vacate an. order for arrest upon the
“ It is undoubtedly true that the mere allegation that the defendant had converted the property to his own use would not have been sufficient. But where it is coupled with the allegation that he has disposed of the property which he had no right to do, and which disposal constituted the conversion, the allegation seems to be sufficient.”
Barrett, J., in concurring, said: “The allegation, that the defendant disposed of and converted the bonds, is equivalent to saying that he disposed of them (which is a fact) and thereby converted them.”
In the case at bar the facts set forth sufficiently show the agency of the defendant and, therefore, the fiduciary character under which he received the notes, discounted them and obtained possession of the proceeds thereof. The complaint sets forth an overt and positive act. It alleges, 6 £ which said sum
Embezzlement is a fraudulent appropriation of another’s property by a person to whom it has been intrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. (Moore v. United States, 160 U. S. 268.)
It involves two general ingredients or elements, (1) a breach of duty or trust in respect to money, property or effects in the party’s possession belonging to another; (2) the wrongful or fraudulent appropriation thereof.
There must be the actual and lawful possession, or custody of the property of another by virtue of some trust, duty, agency or employment on the part of the accused; and while so lawfully in the possession of such property it must be unlawfully and fraudulently converted to the use of the person so in possession and custody thereof. (Reeves v. State, 96 Ala. 31.)
The word has a settled technical meaning of its own .and signifies to fraudulently appropriate to one’s own use the property of another.
Embezzlement is an intentional and fraudulent appropriation of the goods of another by a person intrusted with the same. (1 Whart. Crim. Law [10th ed.], § 1009.)
The Century Dictionary defines ‘ ‘ embezzle ”: “To appropriate fraudulently to one’s own use, as what is entrusted to one’s care; apply to one’s private use by a breach of trust, as a clerk or servant who misappropriates his employer’s money or valuables.”
It also defines “Embezzlement: The act of embezzling; specifically, the act by which a clerk, servant, or other person occupying a position of trust fraudulently appropriates to his
We are of the opinion that the complaint is sufficient. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and the order of arrest reinstated.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, motion denied, with ten dollars costs, and order of arrest reinstated.