The complaint alleges that the plaintiff, an infant, deposited with the defendant, a stockbroker, certain moneys for the purchase and sale of stocks, which transactions resulted in a loss, but that the plaintiff repudiated the transactions and demanded the return of the money. By way of defense it is alleged, and admitted by the reply, that the plaintiff was an employee of a bank, and by means of a fictitious account in said bank and false and fraudulent checks and drafts feloniously withdrew from said bank the moneys which were deposited with the defendant. The Special Term held that as it appeared that the money was the proceeds of a common-law larceny,' plaintiff had no title and, therefore, could not recover. This was error. The facts alleged do not constitute a common-law larceny, but a so-called statutory larceny, because it is evident that the moneys were voluntarily paid over by the bank on the presentation of the checks and drafts,' hence title to the moneys vested in the plaintiff to the exclusion of every one except the bank. (Benedict v. Williams, 48 Hun, 123; People v. Ehrlich, 190 App. Div. 303.)
Whether the plaintiff had title or not does not become important, however, because the defendant, while he remained in possession of the property or its proceeds, could not question the right of the plaintiff to a return of the same, however tortiously the latter may have acquired possession, without showing that he had assumed such a relation towards the true owner that he was no longer in a situation to deny that the true owner actually owned the property and was entitled to its possession-. (Sedgwick v. Macy, 24 App. Div. 1; Valentine v. Long Island R. R. Co., 187 N. Y. 121.) The Special Term, in arriving at its decision, relied upon cases involving the right of a true owner to follow his property, but this question is not involved in the case at bar.
*501It follows that the judgment and order should be reversed, with costs, and the motion denied, with ten dollars costs.
Clarke, P. J., Dowling, Page and Merrell, JJ., concur.
Judgment and order reversed, with costs, and motion denied, with ten dollars costs.