The opinion of Justice Barrett satisfactorily disposes of this appeal on the facts and the law. The defendant ivas a factor and although entitled to del credere commission his character ivas not changed. His responsibility and his compensation were enlarged but that was in fact and in law the only change accomplished by the agreement del credere. He guaranteed the payment of the sum for which the goods were sold, but his liability did not accrue until the purchaser failed to pay. In this case the payment ivas made and the contract of liability therefore, occurring through the del credere commission ivas not called into existence.
The relation of factor continued Avith all its obligations and burdens. The money received Avas the plaintiff’s money and not the defendant’s. It came from the plaintiff’s debtor and should have been paid to the plaintiff as his fund, whatever its amount, less the commissions earned. The identical money received was-therefore the property of the plaintiffs. (See Duquid v. Edwards, 50 Barb. Rep., 297, cited by Judge Barrett.)
Order affirmed Avith ten dollars costs and disbursements of this appeal.
Davis P. J,, and Ingalls. J., concurred.Order affirmed Avith ten dollars costs and disbursements.