Kelsey v. Bank of Mansfield

85 A.D. 334, 83 N.Y.S. 281, 1903 N.Y. App. Div. LEXIS 2110

Opinion

.Patterson, J.:

This appeal is from an order denying the defendant’s motion to vacate an attachment, which motion was made on the ground “ that the facts stated in the papers upon which said warrant of attachment was granted, afforded no basis for an attachment.” It is recited in the warrant that it duly appeared to the satisfaction of the judge granting it that a cause of action exists in favor of the plaintiff against the defendant for the recovery of $39,390, with interest thereon, “ as damages for the wrongful conversion and misapprehension

* of money in the foregoing amount by this defendant and belonging to and being the property of this plaintiff as aforesaid,” and that the defendant is a foreign corporation.

It thus appears that the ground upon which the attachment ivas granted was, that the action was specifically for a misappropriation constituting a conversion of money. The allegations of the complaint may be regarded as declaring upon such a cause of action and affidavits presented on the application are to the same effect.

It is, among other things, alleged in the-complaint that the Manhattan Fire Insurance Company of New York, of which the plaintiff is the receiver, had on deposit in the defendant bank in the State of Ohio,, a certain sum of money ; that the president and cashier of the Manhattan Fire Insurance Company wrongfully made a check payable to the order of the defendant; that the drawers signed the check as president and cashier of the insurance company, and it-was drawn on a fund deposited to the credit of the insurance company in that bank; that thereupon that check was delivered to the defendant at its banking house, and the defendant wrongfully appropriated and charged the same against the account, and deposit of the Manhattan Insurance Company, and wrongfully credited the amount of the check to and in cancellation and extinguishment and payment of an individual, obligation and indebtedness of the persons who signed the check. It is also alleged that the officers of the defendant had full knowledge of the misappropriation of the amount of the check by the officers of the Manhattan Fire Insurance Company, and that a demand has been made upon the defendant for the amount.

There .can be no doubt of the right of the plaintiff, the facts alleged being proven, to recover the amount of the misappropriated money (Gerard v. McCormick, 130 N. Y. 261; Rochester & C. T. R. Co. v. Paviour, 164 id. 281); but it is urged by the defendant that an action for conversion will not lie; that the relation existing between the Manhattan Fire Insurance Company and the defendant was, upon the papers, simply that of debtor and creditor, which is the ordinary relation existing between a bank and its depositor. There are, however, allegations in this complaint- and there are facts stated in the affidavits, upon which the attachment was granted,, which indicate that a somewhat different relationship existed between the Manhattan,Firé Insurance Company and the defendant.. It is stated in the complaint that the money on deposit with the defendant was a. fund which was the property of and belonging to the said Manhattan Fire Insurance Company. It may be inferred from this allegation that a fund specially deposited was in the hands of the defendant bank, which held it not in the ordinary relation of a banker with its depositor. But in addition to that, considering the action as one for the conversion of money, it appears by a statement in the affidavit of Russel S. Johnson that the president of the defendant bank admitted that the check for $39,390 was cashed and the amount appropriated to the extinguishment of the individual indebtedness and obligation of the signers of the •check. If that were so, the money paid on the check was separated from the general funds of the bank as the insurance company’s money. The detail of the transaction is not made to appear, but the facts as stated would indicate that the action was brought specifically for the conversion of that money thus separated and misappropriated. Trover will lie for money, although not specifically earmarked. (Gordon v. Hostetter, 37 N. Y. 99.) On the papers presented, there was enough before the court granting the attachment to disclose a cause of action for the wrongful conversion of money.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Yah Beuht, P. J., Ihgraham, Hatch and Laughlih, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Sic.