Darrah v. Boys — 16 Daly (N.Y.) 209

Majority

p. 209

James N. Darrah, Respondent, against James Boys, Appellant.

(Decided June 2d, 1890.)

Headnote

Plaintiff, in an action for conversion of the proceeds of a note, testified that defendant, as broker, had sold the note for him, and received part of the proceeds in cash, which plaintiff had demanded, and defendant had refused to pay over. Defendant gave evidence tending to prove payment in full, and that he was plaintiff’s banker, and had paid out the proceeds of the note on checks drawn by plaintiff; and also introduced in evidence a letter from plaintiff in which he spoke of keeping an account with defendant and leaving money on deposit with him. Beld, that although this went far to corroborate defendant, there was no such preponderance of evidence as to authorize a reversal of a judgment on a verdict for plaintiff.

p. 210

■Appeal from a 'judgment of this court entered on the verdict of a jury.

The facts are stated in the opinion.

John A. Deadly, for appellant.

Carrington Emerson, for respondent.

The defendant is, and at the time of his transactions with the plaintiff was, a broker and banker and a dealer in commercial paper. Before the acts complained of, the defendant had sold for the plaintiff a promissory note, receiving one half of the amount in cash and the other half in another note. On the 27th of June, 1888, plaintiff delivered to the defendant a note for $4,567.12, which the latter was to sell on the same terms, and, as plaintiff claims, was to pay over the cash realized therefor, less the discount, to him, upon receiving it. Subsequently the defendant received $1,200 cash on account of the note, and never received more, the difference being in some way settled between the plaintiff and the purchaser without defendant’s intervention. Before the commencement of this action plaintiff demanded the cash received on this note of the defendant, which was refused. Thereupon this action was commenced for the conversion of the proceeds. The defense interposed was a denial of the conversion and payment. The answer also set up a counter-claim, which was stricken out on demurrer.

On the trial the plaintiff testified to his • version of the transaction as above set forth, and the defendant gave evidence tending to prove payment in full, and also that the relation of banker and customer existed between the parties, and that the $1,200 had been credited to the plaintiff on his account as such customer and paid out as directed by him. It. was shown on the part of the defendant that plaintiff had drawn a number of checks on the defendant, but plaintiff claimed that these were drawn at defendant’s request instead of paying cash, except in a few instances, when they were drawn for small amounts, and then the plaintiff arranged

p. 211

with the defendant for their payment when presented. The defendant also introduced in evidence a letter written by the plaintiff to him, in which he says “ I told them (The Mount Morris Bank) I kept an account with you, so take care and give me a,good send-off. I will see you in the morning and hope there will be no further delay about Clarke; I want to keep an account with you, and remember the more money we get from Clarke the more I can afford to leave on deposit with you.” This, in our opinion, went far to corroborate defendant’s theory, but this, together with the accounts tending to show payment and an actual indebtedness of the plaintiff to defendant, and all the other circumstances in the case, were fairly submitted to the jury, in a charge to which the defendant took no exception, and they rendered a verdict in favor of the plaintiff.

'We have carefully examined the conflicting testimony in this case with the aid of the oral arguments and briefs of both parties, and while we might have arrived at a different result, we cannot say that the preponderance of evidence is so great as to authorize us to' reverse the judgment on that account, in the absence of anything tending to show that there was a mistake on the part of the jury, or that they were influenced by bias, passion, prejudice, or corruption.

No other question being raised by the appeal in this case, the judgment should be affirmed, with costs.

Labbemobe, Ch. J., concurred.

Judgment affirmed, with costs.