
    Mart Ledwith, as Administratrix, etc., of James Ledwith, Deceased, Appellant, v. Hiram Merritt, Respondent.
    
      An agent receiving rents under the authority of one wrongfully assuming to own the real estate—he is not, after paying the rents over to such person, liable to the real owner.
    
    
      Semble, that where a woman represents herself to a real estate agent as the owner of certain real property, which is in fact owned by her father, and employs him to collect the rents thereof, and the agent in good faith and without notice that his principal does not own the property, pays over the rents collected by him to such principal, he cannot be again compelled to pay them to the real owner of the property.
    
      Semble, that such a case constitutes an exception to the general rule that good faith on the part of an agent will not relieve him from responsibility for acts which his principal could not lawfully authorize.
    Appeal by the plaintiff, Mary Ledwith, as administratrix, etc., of James Ledwith, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Thomas F. Magner, for the appellant.
    
      Wilfrid N. O'Neil (Charles M. Cannon with him on the brief], for the respondent.
   Woodward, J.:

This action is brought by Mary Ledwith, as administratrix of James Ledwith, deceased, to recover from the defendant the sum of $5,309.37 as damages for the alleged conversion by the defendant, in conjunction with one Annie Claffy, of certain rents of premises on East Twelfth street, Manhattan, belonging to the plaintiff’s intestate, who was also the father of said Annie Claffy. The conversion in question is alleged to have taken place during the lifetime of the intestate and between September, 1892, and June, 1894. The answer contained á general denial and as a separate defense alleged that the defendant, as agent for the said daughter of the defendant, collected and paid over to her the rents in question, in good faith, believing her to be the owner of said property and without any knowledge of any claim of title thereto by James Ledwith. So unusual is this action that a detailed statement of the situation presented seems necessary.

The following facts appeared upon the trial: The premises in question consisted of a store on the ground floor and apartments on the other floors. James Ledwith, the intestate, became owner of them in 1853, and the title remained in him until his death, in June, 1894. For many years previous to 1886 the intestate collected the rents in person, but during that year his only son, James Ledwith, Jr., began, and until he died continued, to collect the said rents, the father having become old and feeble. During this period and until his death the intestate resided on his farm at Spring Valley, Rockland county; his fainily consisted of his son James and two daughters, Julia, who died in July, 1892, and Annie. His wife died many years before. The son died some time before the death of Julia, so that before the beginning of tip alleged conversion Annie was the only child. She continued to liVe witli/and care for her father, attending to the household and to all his business affairs, including the collection of the rents of the premises in question. The father was so feeble as to require almost constant care, and shortly after Julia’s death Annie went to the office of the defendant, Hiram Merritt, a real estate agent in Manhattan, and, representing herself to be the owner of these premises, engaged him to collect the rents thereof, and to deposit the proceeds to her account in the Chemical National Bank, at the same time giving him a statement containing the description of the property, the names of the tenants and the amount of the rent paid by them. Merritt then sent his clerk to the house with Annie, who introduced him to the janitress, Mrs. Keegan, as the representative of Mr. Merritt, the real estate agent who would thereafter collect the rents; and Mrs. Keegan, who had been janitress there for twenty-five years, took the clerk through the house and introduced him,to all of the tenants, most of whom had been there. many years. Thereafter, and until 1896, Merritt collected the rents and deposited the proceeds in the Chemical National Bank in Annie’s account, believing her to be the owner of the property and having no intimation to the contrary. In 1896, upon application made by present counsel for the appellant, Mr. Merritt was made receiver of the:premises by Mr. Justice Dickey, and the after continued to collect the rents as such receiver until discharged by order of the court, but the present action concerns only the rents collected by him prior to the death of the intestate, in June, 1894.

Application for letters of administration of the estate of James Led with was not made until July, 1896, when the plaintiff herein, who is the widow of the deceased son of the intestate and mother of the only grandchild, statedafn her petition that the intestate left no personal property except certain claims arising out of the collection of the rents in question. She was duly appointed administratrix, and about the same time she instituted an action against Annie to recover the rents which in the present action are alleged to have been converted by Merritt. Annie died and. judgment in the action was obtained against her administrator, but whether it has been collected does not appear. Some three years elapsed before the institution of the present action.

The plaintiff earnestly endeavored to show that the intestate was insane, and, therefore, not in a position to authorize his daughter to act as she did, bu.t the evidence upon this subject was by no means conclusive, and that question was very properly left to the jury, as was the question whether in view of all the circumstances the daughter, the only child, whose almost constant attendance upon her father was required, was authorized and was permitted by the owner to do acts in and about this property which would lead a man of ordinary intelligence and of ordinary care, transacting business in its usual course, to rely upon what she said.” The jury rendered a verdict for the defendant, and from the judgment entered thereon the plaintiff appeals.

The principal ground urged for' reversal is that the defendant was a joint tort feasor with the daughter Annie in the collection of the rents, and is, therefore, liable as such. Counsel cites but one authority to support this claim, and that has no bearing except in cases where it is first shown that a trespass has been committed. He cites several cases to show that the question of the intent of the defendant is not material, but as the court very properly denied a request of defendant’s counsel to charge that good faith on the part of the defendant would prevent recourse to him, that point loses its importance. Counsel’s third point is without weight.

It is, undoubtedly, generally true that no one can lawfully authorize or direct the commission of a wrong ; and the fact that an agent has acted in good faith is not a defense, for he who intermeddles with chattels not his own should be careful that he has warrant therefor from the owner or from one who has authority from the owner to confer such warrant. But in the case at bar the jury have found in substance that the defendant had warrant from the daughter Annie to collect the rents, and that she had authority from the owner to confer that warrant. Moreover, to the general rule just referred to, there is an exception in the case of money and negotiable instruments, as is noted in the case of Spraights v. Hawley (39 N. Y. 441). (See, also, Truesdell v. Bourke, 145 id. 612, 618.) And an agent who has received money paid by mistake cannot be compelled to repay it where he has paid it over to his principal without notice. (Buller v. Harrison, 1 Cowp. 565; National Park Bank v. Seaboard Bank, 114 N. Y. 28 ; National City Bank v. Westcott, 118 id. 468.)

A case quite apposite to the present discussion is Duffy v. Buchannan (1 Paige, 453). The British consul at ISTew York, with power of attorney from certain heirs residing abroad, received and transmitted to them the proceeds of the personal estate of an intestate, without notice of the existence of other heirs, who subsequently, sought to recover from him. The chancellor says (p. 454) : “ The consul having received the proceeds of the personal estate as the agent of the brother and sister of the full blood, and paid it over to his principals without notice of the claim of the other parties, he is not liable to them for that amount.”

The. case was properly submitted to the jury, and no reason appears to justify an interference with the verdict. The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  