Zinsmeister v. Fauth

138 N.Y.S. 402

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 6, 1912
• Status: Published

Opinion

PER CURIAM.

Action for conversion of (1) several lots of wine and liquor; and (2) of the sum of $40. The disposition of the first item by the trial judge was clearly- such as the facts demanded. As to the second item, we think the judgment was wrong. Defendant had been placed in- charge of plaintiff’s saloon during plaintiff’s absence. On his return, defendant rendered an account of his trusteeship, in which he included the item of $40 in question, as moneys disbursed for certain barrels of beer. Concededly, the vendors of the beer allowed defendant a discount of $14 on the bill, so that his actual payment was only $26. It was not contended that the $40 was put into his account by oversight. His claim that it was a “secret,” and the reluctant manner in which the admission that he was allowed the discount was wrung from him, when cross-examined on the trial, precludes any such theory. Under such circumstances, plaintiff could elect to sue for conversion, and was not bound to bring an action for money had and received, as respondent contends.

The judgment should be reversed, with costs, and judgment directed for plaintiff for $14, with appropriate costs in the Municipal Court.