Aubery v. . Fiske

36 N.Y. 47, 36 How. Pr. 279, 1 Trans. App. 245

• Court: New York Court of Appeals
• Decided: January 5, 1867
• Status: Published

Opinion

Porter, J.

The property was received from Aubrey & Co. by the Defendant, who converted it into money as their agent, and now proposes to detain the proceeds from his principal. The pretext for converting the money to his own use is, that it equitably belongs to Sturgis & Son, as between them and the parties from whom he received it. He sets up this claim of his own motion, after rendering an account of sales to his principals, anc seeks to excuse his breach of duty by alleging outstanding equities in which he has no concern. He pays the money to neithei party; does not offer to pay it into court; does not propose to mterplead the supposed claimants; and complains that the Courl will not permit Mm to detain the proceeds from Ms principal wMle he litigates, as a volunteer, a supposed claim of third persons, who are not parties to the suit, and cannot be bound by tht judgment.

The Supreme Court was right in striking out this portion oí the answer as irrelevant. It constituted no defence to the action and had no bearing on the measure of damages. (Bates v. Stanton 1 Duer, 79; Story on Bailments, §§ 451, 582; Angelí on Car tiers, 3d ed. § 335; McKay v. Draper, 27 H. T. 256; Citj Bank of New Haven v. Perkins, 29 N. Y. 554; Laverty v. Moore, 33 N. Y. 658.)

The judgment should be affirmed. Judge Scrugham read an opinion to the same effect.

All the fudges concurring, fudgment affirmed.