De Lucia v. Cellilo

Appellate Terms of the Supreme Court of New York

De Lucia v. Cellilo

123 N.Y.S. 229

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 24, 1910

StatusPublished

Cited by1 cases

This text of 123 N.Y.S. 229 (De Lucia v. Cellilo) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Lucia v. Cellilo, 123 N.Y.S. 229 (N.Y. Ct. App. 1910).

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Opinion

LEHMAN, J.

The plaintiff alleges in her complaint that the defendant accepted deposits as a banker for safe-keeping; that the plaintiff deposited sums aggregating $500, and has demanded the same, and no part thereof has been paid; and that the defendant has appropriated and converted to his own use and benefit the said sum of money, and refuses to pay any part thereof. In the-prayer of the complaint the plaintiff asks for the arrest of the defendant, if execution against his property be returned unsatisfied.

It is quite apparent that the theory of the complaint is that the money was deposited for safe-keeping only, that the relation of debtor and creditor was never created between the parties, and that failure to return on demand-the money deposited for safe-keeping is a conversion. At the trial, however, the plaintiff failed to show that the money was deposited for safe-keeping; but the evidence showed only the ordinary transactions between a banker and depositor, giving rise to the ordinary relationship of debtor and creditor. Having failed to prove an essential part of her cause of action, the plaintiff was not entitled to [230]*230the direction of a verdict in her favor; but the complaint should have .been dismissed.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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LEHMAN, J.

The plaintiff alleges in her complaint that the defendant accepted deposits as a banker for safe-keeping; that the plaintiff deposited sums aggregating $500, and has demanded the same, and no part thereof has been paid; and that the defendant has appropriated and converted to his own use and benefit the said sum of money, and refuses to pay any part thereof. In the-prayer of the complaint the plaintiff asks for the arrest of the defendant, if execution against his property be returned unsatisfied.

It is quite apparent that the theory of the complaint is that the money was deposited for safe-keeping only, that the relation of debtor and creditor was never created between the parties, and that failure to return on demand-the money deposited for safe-keeping is a conversion. At the trial, however, the plaintiff failed to show that the money was deposited for safe-keeping; but the evidence showed only the ordinary transactions between a banker and depositor, giving rise to the ordinary relationship of debtor and creditor. Having failed to prove an essential part of her cause of action, the plaintiff was not entitled to [230]*230the direction of a verdict in her favor; but the complaint should have .been dismissed.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

123 N.Y.S. 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-lucia-v-cellilo-nyappterm-1910.

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