Pirsson v. Arkenburgh , 29 N.Y. St. Rep. 529 ( 1890 )

Ingeaham, J.-—(concurring).

I agree with Judge Feeedman as to the construction of the contracts.

The money deposited with the Trust Company was Bronson’s, deposited before the contract with the defendant was made as a fund from which the assessment was to be paid. It is nowhere transferred to defendant, nor is there anything that would show that the parties intended the defendant should be entitled in any contingency to the money. It was provided that if the assessment was not paid by Bronson in one year, the money should be paid to defendant by the Trust Company, but it was paid to defendant as the plaintiffs’ money for the special purpose of repaying defendant the amount that he had been compelled to pay to discharge the assessment under the covenant contained in the deed. The balance that remained after paying that assessment was still Bronson’s money, and Bronson was entitled to maintain an action for money had and received to recover such balance.

I think plaintiffs were, therefore, entitled to recover, and that the judgment should be reversed.