Herrick v. Fritcher , 1867 N.Y. App. Div. LEXIS 9 ( 1867 )

By the Court, Johnson, J.

There was in fact no privity whatever, between the defendant and the plaintiff; and under the circumstances of this case I do not think the law will establish a privity, or imply a promise on the part of the defendant to pay the money received upon the orders, to the plaintiff. Where there is no privity in point of fact, the law will establish it, in some cases, as when the party receiving money can not in equity and good conscience retain it. In such cases the law frequently creates the privity, and presumes a promise in accordance with the clear moral duty imposed. (Lime Rock Bank v. Plimpton, 17 Pick. 159.) But this is no such case. The defendant received the money in good faith upon the orders, which were drawn for the purpose of enabling him to obtain payment of an honest debt, contracted by the drawer, and in satisfaction and discharge of such indebtedness. It is therefore in no respect unconscionable for him to retain it.. It was not the plaintiff's money, and never had been. It had no ear mark, and the plaintiff never saw'ti, nor had it in his possession. Even conceding that he- had a demand against the railroad company for the services of his son, it was a mere chose in action, which the defendant never converted or interfered with. If the company paid wrongfully what was due the plaintiff for the wages of the son, the obligation is not discharged, but subsists in full force. The chose in action, which is all the plaintiff ever had, remains unimpaired and in full force as. it was before. On the contrary, if.the payment was lawfully made, and the obligation, conceding it to have once existed, became thereby satisfied and discharged, it is clear that the plaintiff can have no redress from the defendant. In the latter case, the defendant must be held to have come by the monéy in a lawful and proper manner, for the purpose for which he received it.

Independent, therefore, of the statute of 1850, I do not see what claim the plaintiff can possibly have against the defendant. By that actress. Laics o/1850, chap. 266,) it is madetheduty of parents and guardians 'of minor children in the service of other persons, to notify their employers within thirty days after the commencement of the service, that the wages are claimed by such parents or guardians, and if no such notice is given, payment to the minor is valid. It does not appear that any notice had ever been given by the plaintiff to the company in whose service the minor had for a long time been. There is nothing to show that the plaintiff had any legal claim for the services thus paid. The judgment is therefore right, and must be affirmed.

[Monroe General Term, March 4, 1867.

Welles, E. Darwin Smith and Johnson, Justices.