Gould v. Gould

36 Barb. 270, 1862 N.Y. App. Div. LEXIS 59

• Court: New York Supreme Court
• Decided: February 3, 1862
• Status: Published

Opinion

By the Court,

Mason, J.

There is no doubt but that this cause of action is assignable. (McKee v. Judd, 2 Kernan, 622. People v. Tioga Common Pleas, 19 Wend. 73. Hoyt v. Thompson, 1 Seld. 347.) There is no doubt that such a cause of action would survive to the personal representatives. This, indeed, was admitted upon the argument by the defendant’s counsel; and if it be so, the claim was certainly assignable. (Zabriskie v. Smith, 3 Kernan, 322. Quin v. Moore and others, 15 N. Y. Rep. 432.) The complaint alleges the deposit of funds in the hands of the defendant, to be invested by him, &c. for the benefit of the plaintiff; that the defendant did invest in the New York Central rail road stocks and bonds, and afterwards sold the same and realized therefrom $5166. The allegations in folios 5, 6 and 7 of the complaint show an illegal appropriation of these funds, within the principle of the case of Conkey v. Bond, (34 Barb. 276;) If the complaint had stopped at this point, there is no doubt a good cause of action would have been stated; and I am of opinion that what follows does not take it away. There are, it seems to me very clearly, facts stated in this complaint constituting a good cause of action against the defendant; and the allegations in regard to the release executed by the plaintiff are entirely sufficient to avoid it. Upon the facts stated in the complaint the defendant cannot be regarded as technically a trustee, but is, as the judge at special term held, an agent of the plaintiff, having duties to perform towards the plaintiff in the nature of a trust, and where certainly he falls within the suspected relation. In such case the law indulges the presumption of fraud against this release, although it is not visible to the eye of the court. The defendant could not act in the capacity of agent for the plaintiff, and vendor for himself, in transferring these bonds, &c. (14 N. Y. Rep. 85. 20 Barb. 468.) But it is not necessary to place the case upon this ground; for the complaint alleges that the release was procured by fraud, and states facts showing it.

[New York General Term, February 3, 1862.

Leonard, Mason and Clerlce, Justices.]

I advise the affirmance of the judgment of the special term.

Judgment affirmed.