Banner v. D'Auby — 69 N.Y.S. 891

Majority

p. 891

(34 Misc. Rep. 525.)

BANNER v. D’AUBY.

(Supreme Court, Appellate Term.

April 22, 1901.)

Headnote

Attorney and Client—Money Received—Demand—Nonsuit.

Where, in an action to recover money lawfully received by an attorney for a client, plaintiff presents no proof of any demand made, he is properly nonsuited.

Appeal from municipal court of city of New York, Tenth district.

Action by Peter Banner against Louis J. D’Auby. From a judgment dismissing his complaint for failure of proof, plaintiff appeals.

Affirmed.

Argued before BISCHOFF, P. J., and CLARKE and LEVBN-TRITT, JJ.

p. 892

Wales F. Severance, for appellant.

Louis A. Gould, for respondent.

The action is to recover money in the hands of the defendant, received by him, as attorney at law, when engaged in collecting certain claims for the plaintiff’s assignor, and which money he had failed to pay over after demand. Apparently the complaint is framed in assumpsit, and does not proceed for tort, but, whether the action is to- be treated as for conversion, or for money had and received, proof of a demand was essential to the plaintiff’s case, and the making of the demand was placed in issue by the answer. Admittedly, the original receipt of the money by the defendant was lawful. Therefore, without a demand, there can be no conversion, and a demand must be made before an action may be maintained to recover mo.neys of the client alleged to be in the hands of the attorney. Grinnell v. Sherman (Sup.) 14 N. Y. Supp. 544 .

In the absence of the slightest proof that any demand was made, the plaintiff was properly nonsuited, and the judgment must be affirmed, with costs. All concur.