By the Court.
Bockes, J.is an appeal by the defendant from the judgment of the general term of the supreme court, affirming a judgment entered on the report of a referee.
The referee finds as the facts of the case, that one George McLean became possessed of a sum of money amounting to more than four thousand dollars, belonging to the plaintiff, intrusted to him by the plaintiff for a special purpose. That, in violation of his duty as such depositary, and in fraud of the rights of the plaintiff, McLean, through the instrumentality of his brother, and with the knowledge and assent of the defendant, applied to the use of the latter the sum of one thousand one hundred and seventy dollars, part of said sum of four thousand dollars. That the defendant suspected and had reason to believe that the money so applied to his use was part of the money of the plaintiff which had been intrusted to McLean for the special purpose aforesaid. The referee directed judgment for the plaintiff and against the defendant for the sum so applied to his use with interest.
There is abundant evidence to support the finding of the referee, and it follows, of course, that the case must now stand on the facts found and stated by him. And on those facts the right of recovery by the plaintiff was clear beyond possible question. The defendant received the plaintiff’s money to his own use and benefit, with notice of its diversion and misappropriation. According to the facts found, he suspected and had reason to believe that the money was the property of the plaintiff. This was notice to him of the fact, and besides he parted *22with, no consideration, real or pretended, on the faith of the transaction.
The judgment should be affirmed, with costs.
All the judges concurred.
Judgment affirmed, with costs.