Burhans v. Casey

6 Sandf. 707

Opinion

By the Court.

We think the arrest may be supported on two grounds:

1. On the ground that the money was received by the defendant in a fiduciary capacity, even if as was contended those words are to be limited to cases of express trusts. This was an express trust to pay over the money in question.

2. The defendant was an agent to perform a particular duty, that is, to pay this money, which the plaintiff put into his hands, to the landlords. He was a mere depositary of the money for the purpose of paying it over to them. The code as amended in 1849, (§ 179,) expressly provides for this case, in addition to those where the money is received in a fiduciary capacity strictly.

Order affirmed.