We do not think that this case, as now presented varies materially from what it was when before us on a former occasion. (45 N.Y., 188). This court then decided that after the plaintiff, who was simply an agent, had, in pursuance of the orders of his principals, sent the money in question to them by a suitable and proper conveyance, his duties and liabilities were discharged; that the money when delivered to the carrier became the property of the consignees, and from that time the plaintiff ceased to have any title to, or interest in it, which would enable him to maintain an action therefor. *Page 481
The correctness of that decision is not now under review. The effort of the appellant is to show that new facts have been developed upon the second trial which are sufficient to lead to a different conclusion.
The new facts claimed to have been established upon the second trial are, first, that the consignees were fictitious. It is sufficient to say that no such fact is found by the referee; and that, although he was requested to find it, it is not established by such conclusive evidence as to make his refusal error, reviewable as a question of law.
The main evidence relied upon is the absence of the names of John and William White from the muster-roll of the regiment for their pay in which the money in question was collected. This does not of itself prove conclusively that no such persons ever existed. The further facts of the time which has elapsed, and the non-appearance of the consignees to claim the money, notwithstanding the efforts made to find them by advertisements and letters, are equally inconclusive. They are not inconsistent with the theory that they may have absented themselves or died, in which latter case they may have left representatives entitled to the money. The referee was not, therefore, bound, as matter of law, to find that the Whites were fictitious consignees.
But it is claimed, in the second place, that the absence of the names of the Whites from the muster-rolls shows that they could not have been soldiers entitled to the pay which the plaintiff collected for them. In that case a fraud was practiced upon the government of the United States, through the instrumentality, doubtless innocent, of the plaintiff, and the guilty authors of it have failed to come forward and take its fruits. But those circumstances would furnish the plaintiff with no title to the money which would entitle him to maintain an action for it.
I cannot see that the case is varied by the new trial, or that it was material whether the money sent was the identical money received from the government, or other money substituted in place of it. The decision went upon the ground *Page 482 that by the delivery of the money to the carrier, in pursuance of instructions, it became the property of the consignees, and the consignor ceased to have any interest in it. Carrying out the principle of that decision, the judgment must be affirmed.
All concur; ALLEN, J., not sitting.
Judgment affirmed.