Hyperlawhypertext legal database Rosenberg v. Block 49 N.Y. Super. Ct. 488

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Rosenberg v. Block

49 N.Y. Super. Ct. 488 17 Jones & S. 488 Court N.Y. Super. Ct. Decision date 1883-02-05 English

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p. 488
HERMAN ROSENBERG, et al., Respondents, v. HUGO BLOCK, et al., Appellants.

Headnote

Agents.—Arrest.—Commission merchants not liable for conversion for failure to turn over specific proceeds.
Before Sedgwick, Ch. J., and O’Gorman, J.
Decided February 5, 1883.
Appeal from order denying a motion to vacate an order of arrest.
Action for conversion; the ground of arrest was the same. The papers showed that the'defendants, commission merchants in the city of New York, received from the plaintiffs merchandise upon the agreement that defendants would sell the same as agents for the plaintiffs and remit the proceeds of sales to them; that the defendants did sell said merchandise to the amount of about $800, but did not remit the proceeds, but refuse to pay the same.
The court at General Term, said : “The allegation in the complaint that the defendants “ unlawfully and wrongfully and with intent to defraud the plaintiffs, converted the ■ same to their own use,” cannot be regarded as a statement of facts of the truth of which plaintiffs could have knowledge, but rather as a legal conclusion from the facts which .they had averred (Greentree v. Rosenstock, 61 A7. 7. 583).
“The mere fact, that the defendant was an agent to sell
p. 489
and receive the proceeds does not make him liable for a tort, in case he does not pay over the proceeds on demand, after those proceeds have passed from the specific form in which they were received, and have been commingled with/ the agents own money. The duty of an agent for sale is to account for the proceeds of his principal’s property ; but he is not guilty of a conversion, if he does not deliver the specific proceeds to his principal (Robbins v. Falconer, 43 Super. Ot. 363).”
S. W. Weiss, for appellants.
Theron G. Strong, for respondents.

Opinion by O’Gorman, J. —Order appealed from reversed with $10 costs, and the order of arrest vacated with $10 costs.

Sedgwick, Ch. J. —“I concur on the ground that the papers did not show that the defendants had received the proceeds of the goods or how much they were.”