J. W. Matthews & Co. v. Employers' Liability Assurance Corp.

Appellate Division of the Supreme Court of New York

J. W. Matthews & Co. v. Employers' Liability Assurance Corp.

127 A.D. 195, 111 N.Y.S. 76, 1908 N.Y. App. Div. LEXIS 1926

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 1908

StatusPublished

Cited by3 cases

This text of 127 A.D. 195 (J. W. Matthews & Co. v. Employers' Liability Assurance Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

J. W. Matthews & Co. v. Employers' Liability Assurance Corp., 127 A.D. 195, 111 N.Y.S. 76, 1908 N.Y. App. Div. LEXIS 1926 (N.Y. Ct. App. 1908).

Pincite

Opinion

Gaynor, J.:

The findings of fact sufficed to support the legal conclusion of larceny under the law of this state. Section 528 of our Penal Code makes it larceny for an agent or servant to appropriate to his own use any money or property which he has in his possession as such agent . or servant, “ with the intent to deprive or defraud the true owner of his property or of the use and benefit thereof ”. Section 548 provides that it is a sufficient defence that the “ property ” was “ appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable ”. But the referee-[197]*197found on sufficient evidence that the appropriation in this case was in bad faith. Moreover, such appropriation did not come under this latter provision. The money was not appropriated under a claim of title, but under a claim of indebtedness by the plaintiff to the agent; and it is provided by the last sentence of this same section, that the said section “shall not excuse the retention.of the property of another to offset or pay demands held against him”.

The claim that the question of larceny should be determined under the laws of Connecticut, where the money was collected and misappropriated, is not tenable, the contract of insurance having been made and delivered in this state to the plaintiff, a resident thereof. The contract was not a roving one but intended the laws of this state (Grand v. Livingston, 4 App. Div. 589; 158 N. Y. 688; Fidelity & Casualty Co. v. Wells, 49 App. Div. 171; Stumpf v. Hallahan, 101 id. 383 ; Monroe v. Douglass, 5 N. Y. 447; Union Nat. Bank v. Chapman, 169 id. 538).

The plaintiff complied with the condition precedent of furnishing particulars and proofs of loss.

The judgment should be affirmed.

Woodward, Hooker and Miller, JJ., concurred; Rich, J., not voting.

Judgment affirmed, with costs. , .

Free access — add to your briefcase to read the full text and ask questions with AI

Gaynor, J.:

The findings of fact sufficed to support the legal conclusion of larceny under the law of this state. Section 528 of our Penal Code makes it larceny for an agent or servant to appropriate to his own use any money or property which he has in his possession as such agent . or servant, “ with the intent to deprive or defraud the true owner of his property or of the use and benefit thereof ”. Section 548 provides that it is a sufficient defence that the “ property ” was “ appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable ”. But the referee-[197]*197found on sufficient evidence that the appropriation in this case was in bad faith. Moreover, such appropriation did not come under this latter provision. The money was not appropriated under a claim of title, but under a claim of indebtedness by the plaintiff to the agent; and it is provided by the last sentence of this same section, that the said section “shall not excuse the retention.of the property of another to offset or pay demands held against him”.

The claim that the question of larceny should be determined under the laws of Connecticut, where the money was collected and misappropriated, is not tenable, the contract of insurance having been made and delivered in this state to the plaintiff, a resident thereof. The contract was not a roving one but intended the laws of this state (Grand v. Livingston, 4 App. Div. 589; 158 N. Y. 688; Fidelity & Casualty Co. v. Wells, 49 App. Div. 171; Stumpf v. Hallahan, 101 id. 383 ; Monroe v. Douglass, 5 N. Y. 447; Union Nat. Bank v. Chapman, 169 id. 538).

The plaintiff complied with the condition precedent of furnishing particulars and proofs of loss.

The judgment should be affirmed.

Woodward, Hooker and Miller, JJ., concurred; Rich, J., not voting.

Judgment affirmed, with costs. , .

Cite This Page — Counsel Stack

Bluebook (online)

127 A.D. 195, 111 N.Y.S. 76, 1908 N.Y. App. Div. LEXIS 1926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-w-matthews-co-v-employers-liability-assurance-corp-nyappdiv-1908.

Opinion

Related

Cite This Page — Counsel Stack