Marcus v. Fidelity & Deposit Co.

Appellate Terms of the Supreme Court of New York

Marcus v. Fidelity & Deposit Co.

145 N.Y.S. 49

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 30, 1913

StatusPublished

Cited by1 cases

This text of 145 N.Y.S. 49 (Marcus v. Fidelity & Deposit Co.) 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

Marcus v. Fidelity & Deposit Co., 145 N.Y.S. 49 (N.Y. Ct. App. 1913).

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Opinion

SEABURY, J.

This action is brought upon a bond of the defendant conditioned to repay any loss to the plaintiffs which should occur by reason of any act of larceny or embezzlement on the part of' their employé, one Thomsen. The plaintiffs proved that Thomsen collected rents for them while acting for them in a fiduciary capacity. It was also proved that Thomsen failed to pay to plaintiffs $359 of the money so collected. The evidence shows that after the plaintiffs demanded this sum from Thomsen he disappeared, and that he was found and arrested only after a diligent search had been made for him. It is conceded that the plaintiffs complied with all the provisions of their contract regarding notification to the defendant. The defendant offered evidence. The court below rendered judgment dismissing the complaint.

The respondent contends that the evidence was insufficient to establish a larceny or embezzlement. It is suggested by the respondent that Thomsen may have lost the money, or that some member of his family may have lost the money, or that Thomsen through some negligence on his part may not be able to account for the money which he collected and failed to pay over to the plaintiffs. The plaintiffs were not required by their proof to negative thesé several contingencies. The evidence adduced made out a prima facie case of embezzlement, and, in the absence of any evidence to the contrary, justified the inference that Thomsen with criminal intent embezzled the money of his employers which he had collected for them in a fiduciary capacity. The defendant had the right, if it were able to do so, to offer proof to show that Thomsen had not stolen the money, or that it was lost through [50]*50the act of some member of his family, or that his inability to account for it was occasioned by negligence on his part. In the absence of any evidence to sustain these suggestions, the plaintiffs were entitled to recover upon the bond sued upon.

Judgment reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.

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SEABURY, J.

This action is brought upon a bond of the defendant conditioned to repay any loss to the plaintiffs which should occur by reason of any act of larceny or embezzlement on the part of' their employé, one Thomsen. The plaintiffs proved that Thomsen collected rents for them while acting for them in a fiduciary capacity. It was also proved that Thomsen failed to pay to plaintiffs $359 of the money so collected. The evidence shows that after the plaintiffs demanded this sum from Thomsen he disappeared, and that he was found and arrested only after a diligent search had been made for him. It is conceded that the plaintiffs complied with all the provisions of their contract regarding notification to the defendant. The defendant offered evidence. The court below rendered judgment dismissing the complaint.

The respondent contends that the evidence was insufficient to establish a larceny or embezzlement. It is suggested by the respondent that Thomsen may have lost the money, or that some member of his family may have lost the money, or that Thomsen through some negligence on his part may not be able to account for the money which he collected and failed to pay over to the plaintiffs. The plaintiffs were not required by their proof to negative thesé several contingencies. The evidence adduced made out a prima facie case of embezzlement, and, in the absence of any evidence to the contrary, justified the inference that Thomsen with criminal intent embezzled the money of his employers which he had collected for them in a fiduciary capacity. The defendant had the right, if it were able to do so, to offer proof to show that Thomsen had not stolen the money, or that it was lost through [50]*50the act of some member of his family, or that his inability to account for it was occasioned by negligence on his part. In the absence of any evidence to sustain these suggestions, the plaintiffs were entitled to recover upon the bond sued upon.

Judgment reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.

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Bluebook (online)

145 N.Y.S. 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcus-v-fidelity-deposit-co-nyappterm-1913.

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