Frey v. Torrey

Gildersleeve, J.

The action is brought to recover the amount deposited by the plaintiff with the defendant, who was a private banker, which deposit was, according to the plaintiff, received by the said banker, although the latter knew he was insolvent at the time of receiving such deposit. The, answer is a general denial and a discharge in bankruptcy. The justice gave judgment for the plaintiff for.$162.05 damages and costs. The defendant appeals.

The defendant was a private banker, with whom plaintiff had been making deposits for more than a year. His last deposit was on October 11, 1898.' On October 4, 1898, the plaintiff’s total

balance with defendant was $1.19, but on October fifth, sixth, seventh, tenth and eleventh he deposited sums aggregating $150. However, during the aforesaid days of October, 1898, he withdrew sums aggregating $28, so that at the close of business on October eleventh he had a balance of. $123.19, of which $122 had been deposited by the plaintiff and received by the defendant, as such private banker, subsequent to October 4, 1898. Other checks were drawn by the plaintiff on the defendant on October tenth and payment refused, although the amounts were within the limit of the plaintiff’s balance with the defendant. Ho part of the balance of $123.19 has been paid by the defendant, although duly demanded. On October 13, 1898, the defendant made a general assignment for the benefit of creditors. The assignee only succeeded in collecting about $600 of assets. The plaintiff introduced considerable evidence, both documentary and oral, tending to show that defendant was insolvent at the time that said deposits were made, and that he accepted them with full knowledge of his own insolvency, while carefully concealing that fact from the plaintiff. There is much dispute as to the facts, but there is sufficient evidence' to uphold the finding of the justice in the plaintiff’s favor.

By accepting such deposits, under the circumstances disclosed, the defendant was guilty of fraud. Cassidy v. Uhlmann, 54 App. Div. 208; Cragie v. Hadley, 99 N. Y. 135; Blair v. Hill, 50 App. Div. 33. His discharge in bankruptcy did not relieve him from a debt founded on fraud (Bank. Act, § 17, subd. 4), nor, by proving bis claim against the defendant in the bankruptcy proceeding, did the plaintiff waive his right to bring this action. Ewart v. Schwartz, 16 J. & S. 390; Stokes v. Mason, 10 R. I. 261. The numerous authorities cited by the defendant’s counsel do not seem to apply to the circumstances of the case at bar.

The judgment, upon the whole case, should be affirmed, with costs.

Freedman, P. J., concurs.