Gibbs v. Hichborn

Brady, J.:

The error of the appellant consists in supposing that the transaction between the parties hereto was a copartnership. It was not. The complaint contains a statement of it in detail. The defendant was to sell a bond and mortgage, in wdiich the plaintiff had an interest as owner, and out of the proceeds to pay the plaintiff the amount of his ownership. He negotiated the sale, received the money, and kept a part of the plaintiffs share as owner. As suggested, all the facts, including that just stated, in regard to the mortgage, were not only recited in the complaint, but tho subject of proof, and therefore of investigation, on the trial. It is quite apparent that no credit was given to the defendant by the plaintiff The former was to pay the share of the latter when the money was received for the transfer contemplated, and the transaction was therefore like the delivery of any property to be sold on account of the owner and upon the agreement that the proceeds should be paid over when received. The statement of facts per se imported liability to arrest.

The defendant acted in á fiduciary capacity, and was therefore subject to that remedy. The principles declared in Wood v. Henry (40 N. Y., 124), to which we were referred, are applicable. We can adopt the view of the transaction in the respondent’s points:

“ The whole arrangement evidently shows that the intention of the parties was to raise a sum of money from some third party, and that the plaintiff, having confidence in defendant’s integrity, executed-to him a bond reciting that he was indebted to him in the sum of $20,000, conditioned for the payment of $10,000, secured by mortgage upon the real estate, trusting to his honor to properly dispose of the security for the purpose of accomplishing their object, namely: The raising of money and the division of the proceeds.”

The case of Morange v. Waldron (6 Hun, 529) is not an authority in favor of the defendant. The proposition maintained in that case was, that in order to render a person liable to arrest under subdivision 2 of section 179, relating to money received in a fiduciary capacity, it must appear that the identical money received was the property of the creditor. Assuming that to be the law, this case presents the necessary element. The money received on the sale of the bond and mortgage was, to the extent of the plaintiff’s interest as owner, his money, and was, by agreement, to be paid over to him when received. The right to issue an execution against the person existed therefore. The cause of arrest was identical with the cause of action, and the facts constituting the latter were established by recovery and judgment, and show conclusively that the defendant was liable to arrest. (Code, 179; Woods v. Henry, supra.)

> The order appealed from must be affirmed, with ten dollars costs, and the disbursements of this appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.