Burhans v. Casey — 6 N.Y. Super. Ct. 707

Majority

p. 707

Burhans v. Casey.

Headnote

One who receives money from another to pay directly to a third person, may be arrested, under the code of procedure, on his. omission to pay it over.

He is liable to arrest as having received it as an agent, as well as by reason of his fiduciary character.

(Before Oakley, Oh. J., and Sandford and Campbell, J. J., the other Justices concurring.)

March 6, 1852.

Appeal from an order denying a motion to vacate an order of arrest. It appeared that the plaintiff was a tenant of Florence & Harpel, and defendant was his surety for the payment of the rent. Early in August last, the plaiiitiff, not being prepared' to pay all the rent due on the 1st August, delivered to the de

p. 708

fendant $150, a part of the amount, for him to pay over to E. & H., which he promised to do. He never paid over the same, although F. & H. were ready to receive it, and he told them several times that he would pay it over.

J. Parker, for the defendant.

A. Mathews, for the plaintiff.

We think the arrest may be supported on two grounds:

1. On the ground that the money was received by the defendant in a fiduciary capacity, even if as was contended those words are to be limited to cases of express trusts. This was an express trust to pay over the money in question.

2. The defendant was an agent to perform a particular duty, that is, to pay this money, which the plaintiff put into his hands, to the landlords. He was a mere depositary of the money for the purpose of paying it over to them. The code as amended in 1849, (§ 179,) expressly provides for this case, in addition to those where the money is received in a fiduciary capacity strictly.

Order affirmed.