Majority
This is an appeal by the Defendant from the judgment of the General Term of the Supreme Court, affirming a judgment entered on the report of a referee. The referee finds, as the facts of the case, that one George McLean became possessed of a sum of money, amounting to more than §4,000, belonging to the Plaintiff’ entrusted to him by the Plaintiff’ for a special purpose; that in violation of his duty as such depositary, and in fraud of the rights of the Plaintiff’, McLaren, through the instrumentality of his brother, and with the knowledge and assent of the Defendant, applied to the use of the latter the sum of $1,170, part of said sum of $4,000; that the Defendant suspected and had reason to believe that the money so applied to his use was part of the money of the Plaintiff’ which had been entrusted to McLaren for the special purpose aforesaid. The referee directed judgment for the Plaintiffj and against the Defendant, for the sum so applied to his use, with interest.
There is abundant evidence to support the finding of the referee, and it follows, of course, that the case must now stand on the facts found and stated by him. And on those facts the right of recovery by the Plaintiff was clear beyond possible question. The Defendant received the Plaintiff’s money to his own use and benefit, with notice of its diversion and misapplication. According to the facts found, he suspected and had reason to believe that the money was the property of the Plaintiff This was notice to him of the facts, and besides, he parted with no consideration, real or pretended, on the faith of the transaction.
The judgment should be affirmed, with costs.
All concur.
JOEL TIFF ANT, State Reporter.