Sagone v. Mackey — 155 N.Y.S. 354

Majority

p. 354

SAGONE v. MACKEY.

(Supreme Court, Appellate Term, First Department.

November 3, 1915.)

Headnote

Principal and Agent @^>159—Wrongful Acts—Liability of Agent.

Conversion will not lie against a person in his individual capacity, where he acted as an agent for another and undér its authority in receiving the money alleged to have been converted.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 599-612; Dec. Dig. <g=159.]

<@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Municipal Court, Borough of Manhattan, Ninth District. '

Action by Concetta Sagone, as administratrix of Giacomo Sagone, deceased, against David Clinton Mackey. Judgment for plaintiff, and defendant appeals. Reversed.

Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.

Wilder, Ewen & Patterson, of New York City (John Ewen, of New York City, of counsel), for appellant.

Samuel F. Frank, of New York City, for respondent.

This action was brought .in conversion. Without going into immaterial facts, it appears that defendant was the general agent of the Illinois Surety Company, and as such maintained a bank account upon which he drew in his own name. The plaintiff had a number of transactions with defendant in his capacity as agent of the company, and in the course thereof made a number of deposits of money, the last of which is the basis for the action.

The record is replete with discussion concerning the character of the bank account, how it was closed out, how much defendant was entitled to draw from it monthly, and many other immaterial matters covering the relations between the defendant and his principal. The record, however, discloses, and, indeed, both counsel seem to agree, that at the time of the deposit of this money defendant was the general agent of the Illinois Company, and that the money was received by him with its authority in the course of such employment and on its behalf. The money, therefore, which forms the basis of this action, was never received by the defendant individually, and whatever cause of action may or may not have arisen in favor of the principal, as against the defendant as its agent, plaintiff has no cause of action against him for conversion.

Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.