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Strahl v. Fink

116 N.Y.S. 352 Court N.Y. App. Div. Decision date 1909-04-23 English

Delivered by RICH, J.

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p. 352
STRAHL v. FINK.
(Supreme Court, Appellate Division, Second Department.
April 23, 1909.)

Headnote

Money Received (§ 2[1] )—Liability of Defendant.
A worthless check, given defendant by his predecessor as treasurer of an unincorporated association and reported by defendant as cash on hand, did not, because of his negligence, make defendant liable to the association for money had and received.
[Ed. Note.—For other cases, see Money Received, Cent. Dig. §§ 2-5; Dec. Dig. § 2.*]
Appeal from Municipal Court, Borough of Brooklyn, Third District.
Action by Robert Strahl, president of the Brooklyn Hebrew Dispensary Society, against Jacob Fink. Judgment for plaintiff, and defendant appeals.
Reversed, and new trial ordered.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.
Morris Walzer (Edward E. Rosenblume, on the brief), for appellant.
Bernhard Bloch, for respondent.

This action is brought by an unincorporated association against its treasurer for money had and received, and the plaintiff has recovered. It is conceded that the money sued for was never in the possession of the defendant, but is represented by a worthless check given to him by his predecessor in office, and which he reported to the association as cash on hand. This check did not discharge the liability of the former treasurer to the association for the money in his hands. It was never paid over by him. Proof that the plaintiff has sustained loss or damage through the negligent acts of the defendant is not sufficient to maintain an action for money had and received. National Trust Co. v. Gleason, 77 N. Y. 400 , 33 Am. Rep. 632 .

The judgment must be reversed, and a new trial ordered; costs to abide the event. All concur.

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