Thompson v. Vrooman , 73 N.Y. Sup. Ct. 245 ( 1892 )

PUTNAM, J.

This action is brought for the wrongful conversion of $1,0001 The complaint alleges that on the 26th day of May, 1867, plaintiff delivered to defendant the sum of $1,000, with directions to place the same on deposit with H. R. Pierson & Son, bankers in Albany, N. Y., to remain there on interest for the benefit of plaintiff. Defendant, receiving and agreeing to so deposit said money, in fact deposited the same to his own credit. He was not the owner of, and had no interest in, said money. That the same belonged to plaintiff. That thereafter, and prior to October 5, 1888,'defendant, without the knowledge or consent of plaintiff, unlawfully withdrew said money, and unlawfully appropriated and converted the same to his own use. While the complaint does not characterize the deposit of this money by defendant in his own name as a conversión, yet it states all the facts, showing that such deposit by defendant was a wrongful appropriation of the fund. And the complaint also alleges a conversion by the wrongful withdrawing and use of the said money. Defendant, in his answer, alleges that the deposit of the said money in his own name was done with the knowledge and consent of the plaintiff, and denies any wrongful appropriation of the same.

The case presents a question of fact, which the referee has determined in favor of the plaintiff. I have examined the testimony given upon the trial and the briefs submitted by counsel with care. The evidence was conflicting, and the referee might have reached a different conclusion from that arrived at. There was testimony in the case from which he could have determined that the money in suit was deposited in the defendant’s name with the consent of plaintiff, but I think there was sufficient evidence given to sustain.the referee’s finding on the question presented for his decision. The rule is familiar that on questions of fact the appellate court will not reverse unless the evidence in favor of the appellant greatly preponderates. Authorities sustaining this rule are cited by respondent, and need not be discussed here. I think that this case does not present such a preponderance of evidence of the defendant as will justify a reversal of the judgment. On the contrary, if it were my duty to pass upon the testimony as an original question, I should hesitate before coming to a different conclusion from that reached by the learned referee.

Counsel for appellant suggests that the referee erred in declining, at defendant’s request, to find that “the complaint alleged a cause of action in tort, not contract,” and also in refusing to find that, “in order to maintain the action in its present form, it must affirmatively appear that the defendant has been guilty of conversion.” These errors, if they should be deemed such, are harmless. The complaint clearly alleges a cause of action in tort, and I see no reason why the referee should characterize it. The defendant has suffered no injury by his declining to find that a complaint plainly alleging a conversion contains a cause of action in tort. Again, in his findings, the referee distinctly determines that the defendant was guilty of a conversion of the money in suit, and a refusal to repeat the finding can produce no injury. The referee did not err in declining to find that “ defendant was in no way acting in a fiduciary capacity.” He did find properly, on the evidence in the case, that the defendant received $1,000, as the agent of plaintiff, to deposit; hence defendant was acting in a fiduciary capacity. But it is suggested that there was no allegation in the complaint that a fiduciary relation existed. It is true that the complaint does not use-the word “fiduciary,” but facts are stated showing that defendant received the money to deposit, and hence that the relation of principal and agent existed. Where an agent takes money from a principal to deposit in a bank in the principal’s name, it cannot be said that the agent was “not in any way acting in a fiduciary capacity.” See Flagg v. Ely, 1 Edm. Sel. Cas. 206. Hence the above request of the defendant to find was properly refused by the referee. I think the error of-the court below, if any, in overruling the objection to this question asked of plaintiff, viz., “ Did you make an application for a pension on account of your son being killed in the war? ” harmless. The error could not possibly produce any injury to the defendant. The statement from the books of the bank was properly received in evidence, under the stipulation. That stipulation provided that the statement might be read as original evidence; that it was correct as to the amount of deposits to the credit of defendant, and the amount drawn out by him. As we have seen, the evidence in the case is sufficient to sustain the findings of the referee that there was a wrongful deposit of the money in suit by defendant in his own name, and also a wrongful withdrawing and conversion of said fund. Hence no demand prior to the commencement of the action was necessary to be made by the plaintiff, and therefore the exception to the rulings of the referee admitting Exhibit D are not well taken.

It is insisted that the referee erred in overruling objections to the following, question asked of plaintiff, viz.:

“Did you consent that Mr, Vrooman should draw the $1,000 from H. R. Pierson & Son’s bank? (Objected to.) * * * No, sir. No, I didn’t consent that he might use it. I didn’t know that he had done so. 1 knew nothing about it until the bank had failed. ” '

I .think the. question was properly allowed to be answered, as calling for a fact; that the case was one w'here the plaintiff could properly show a negative. It was competent for the plaintiff to establish the fact that the withdrawal of the funds by the defendant was not done with his consent. This fact could only be shown in the way allowed by the referee. See Crane v. Baudouine, 55 N. Y. 263; Huggans v. Fryer, 1 Lans. 277; People v. Tubbs, 37 N. Y. 589; Crouse v. Garlock, 45 How. Pr. 85. There are other exceptions taken not necessary to be considered. The judgment should be affirmed, with costs.

HERRICK, J., concurs.