Spor v. Grau — 89 A.D. 365

Majority

p. 365

George Spor, Appellant, v. Frederic W. Grau, Respondent.

Headnote

Deposit of money to secure bail—exclusion of competent evidence in respect to its receipt by the defendant, as to what he agreed to do with it, and as to its having been repaid to the accused.

In an action brought to recover the sum of §500 which the plaintiff claimed had been deposited with the defendant as his attorney to indemnify the plaintiff against loss upon a bail bond which he had executed at the defendant's request, it appeared that the defendant asked the plaintiff to sign a bail bond for one Scheich, and told the plaintiff that Scheich would deposit §500 for the plaintiff’s protection; that the plaintiff signed the bond and himself received' the

p. 366

money from Scheich, and that such money was subsequently turned over to the defendant upon certain terms ahd conditions.

It further appeared that the plaintiff’s liability upon the bond was subsequently-terminated, but it did not appear whether or not the plaintiff had been obliged. to pay any money thereon.

Held, that it was error for the court,

First, to prohibit the plaintiff from proving that the defendant was his lawyer, . hired by him to act in his legal business;

Second, to prevent the plaintiff' from, testifying to what the defendant said he-would do with the money when it was deposited with him, and,

Third, to prevent the plaintiff from proving, by Scheich, the circumstances under which the $500 was repaid to him.

Appeal by the plaintiff, George Spor, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 17th day of April, 1903,, dismissing the plaintiff’s complaint.

Adolph Feldblum, for the appellant.

Frederic W. Grau, for the respondent.

The plaintiff sues to recover the sum of $500 which he alleges, was deposited with the defendant as his attorney and as his security for the giving of a bail bond at the defendant’s request. It is not, clear from the return whether the plaintiff has a good cause of action for the return of the money, but so much evidence having a. material bearing upon the solution of that question was rejected upon the trial that a new trial is necessary in the interests of justice.

The dismissal of the complaint appears to have been based chiefly,, if not wholly, upon the belief on the part of the trial court that no. agency was established in relation to the transaction tending to indicate that the defendant was acting on the plaintiff’s behalf in the-receipt of the money. It was undisputed, however, that the defendant did ask the plaintiff to sign the bail bond in question for a client, named Scheich, and that he told the plaintiff that Scheich would, put up $500 cash for the plaintiff’s protection. The plaintiff signed the bond and himself received the money which was afterwards, turned over. to the defendant tinder terms and conditions which, under the rulings of the trial court were not disclosed. It further

p. 367

appears that the plaintiff’s liability upon the bond was subsequently terminated, but whether this was done without payment by the plaintiff does not appear, for the reason that evidence which it is claimed was offered for the purpose of showing that the plaintiff was obliged to and did make such payment was rejected.

On the question of agency it was error to prohibit the plaintiff from proving that the defendant was his lawyer, hired by him to act in his legal business. Questions designed to elicit this evidence were excluded as calling for conclusions, and on .the same ground evidence was excluded to the effect that the plaintiff had confidence in the defendant. It was clearly error to prevent the plaintiff from testifying as to what the defendant said he would do with the money when it was deposited with him. The nature of the engagement made by the defendant at the time would seem to be controlling in the disposition of the controversy. It was also error to prevent the plaintiff from proving by Scheich the circumstances under which the $500 was repaid to him. It is conceded that it has not been repaid by the defendant, and there are indications in the return that it was repaid by the plaintiff under legal compulsion in an action brought by Scheich against him. There are other errors in ruling which would probably not be repeated upon a new trial, but without expressing any opinion on the merits of the case, we think those herein referred to are sufficient to require a reversal.

The judgment should be reversed and a. new trial ordered.

Bartlett, Woodward, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.