The property was received from Aubery Co. by the defendant, who converted it into money as their agent, and now proposes to detain the proceeds from his principal. The pretext for converting the money to his own use is, that it equitably belongs to Sturgis Son, as, between them and the parties from whom he received it. He sets up this claim, of his own motion, after rendering an account of sales to his principals, and seeks to excuse his breach of duty, by alleging outstanding equities in which he has no concern. He pays the money to neither party; does not offer to pay it into court; does not propose to interplead the supposed claimants; and complains that the court will not permit him to detain the proceeds from his principal, while he litigates, as a volunteer, a supposed claim of third persons, who are not parties to the suit and cannot be bound by the judgment.
The Supreme Court was right in striking out this portion of the answer as irrelevant. It constituted no defense to the action, and had no bearing on the measure of damages. (Bates v.Stanton, 1 Duer, 79; Sto. on Bail., §§ 451, 582; Ang. on C.C., § 335; McKay v. Draper, 27 N.Y., 256; City Bank of NewHaven v. Perkins, 29 id., 554; Laverty v. Moore, 33 id., 658.)
The judgment should be affirmed.
Judge SCRUGHAM read an opinion to the same effect.
All the judges concurring,
Judgment affirmed. *Page 49