Sweet v. Taylor ( 1885 )

Pratt, J.:

The plaintiff as survivor is entitled to the assets of the late firm. If the defendant knowingly received money which belonged to the plaintiff as survivor of Sweet & Finnegan, he received it to plaintiff’s use, and cannot in an action shelter himself under his representative capacity. If he could not bind the estate by his contracts, still less can he bind it by conduct very closely resembling a tort. The question, then, is whether the money was shown to be assets of the firm of Sweet & Finnegan. It was so described in the inventory filed by the defendant in discharge of his duty as executor. It appears that defendant has conceded the fact so to be by his previous payments on account.

The witness Bonnell testifies to statements of Finnegan in his lifetime to the same effect. Independent of plaintiff’s testimony, it was fully proved that the money in suit belonged to Sweet & Finnegan. It is therefore not very material whether plaintiff’s testimony to the conversation between Finnegan and Taylor was properly admitted. Cary v. White (59 N. Y., 336) seems to sustain the ruling of the referee.

This action was therefore well brought, and plaintiff has proved his cause of action. The fact that defendant as executor of Finnegan has brought an action against this plaintiff for an accounting has no relevancy in this action.

However that may terminate, the judgment appealed from must be affirmed, with costs.

Dykman, J., concurred.