
    Safford E. North and Emily L. H. Barry, as Executors, etc., of Charles H. Hedley, Deceased, Appellants, v. The Peoples Bank of Buffalo, Respondent.
    Fourth Department,
    November 15, 1911.
    Conversion—wrongful pledge of bonds belonging to estate — notice to pledgee—erroneous nonsuit — appeal — failure to except.
    Where, in an action against a bank for the conversion of bonds belonging to an estate and pledged with the defendant by a former executor as security for the payment of‘a note of third parties, the plaintiff proves that after the note was paid and the bonds were released the former executor notified the defendant that the bonds were not his property, but belonged to the estate, and the defendant subsequently applied the proceeds of the bonds to a personal indebtedness of the executor, it is error to dismiss the complaint upon the ground that the plaintiff has failed to prove a cause of action.
    The Appellate Division will not sustain a nonsuit because of alleged errors in admitting evidence, if no exceptions appear in the record.
    Appeal' by the plaintiffs, Safford E. North and another, as executors, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orleans on the 5th day of October, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Orleans Trial Term.
    
      Frank F. Williams, for the appellants.
    
      James McCormick Mitchell, for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellants to. abide event.

The action was for the conversion of two bonds of $500 each. The court held that no cause of action was made out. The appellants claim the case was one for submission to the jury. There was evidence tending to show that the bonds were the property of the appellants’ testator; that William E. Hedley was at one time an executor with appellants and he then had the control of its affairs, the appellants taking little or no part in its management. The acting executor had the custody of these two bonds and pledged them to defendant with other bonds as security for a $5,000 note made by George H. Hedley and wife. This note was subsequently paid from the proceeds of the sale of the other bonds, and thereupon these two bonds were released. The defendant was informed by this executor that these two bonds were not his property but belonged to the estate. Nevertheless-the defendant insisted upon applying the proceeds thereof, which it. had received, upon the personal indebtedness by the executor to the defendant. This was the conversion alleged and which the jury might have found upon the evidence given by -plaintiffs in the absence of any evidence on the part of the defendant. There should not have been a nonsuit. The defendant should have been put upon its defense and the case submitted to the jury. The defendant now claims that some of the.evidence given in behalf of the plaintiffs was incompetent and- improper and was received under-exceptions which do not appear in the record. We must rely upon the record and nothing of. this kind appears therein. So far as we know the evidence in question was taken without objection or exception. The defendant further claims the bonds were pledged to defendant for other indebtedness besides the $5,000 note, and that some of the evidence on cross-examination shows this. The most that can be said upon this subject is that there was conflict in the. evidence, and that was for the jury to settle, not for the court. The court limited the examination on this subject rather closely.. It might well have allowed more latitude, and the apparent conflict might thenhave disappeared. Many objections are now made to the sufficiency of the plaintiffs’ proofs to maintain the action. I do not think it necessary to discuss them in detail. I do not think them well made. They relate largely to the incompetency of the evidence hereinbefore referred to, the failure to put the will in evidence and to produce the books of the Rochester Land Company, and the giving of parol evidence in their absence, the want of identity of the bonds in question, etc. There should- be a new trial, and the. respondent can then have ther benefit of its objections, which it is not in a position to urge upon this appeal, and appellants will have a chance to avoid these objections, if they are able to do so, and all controverted questions of fact can be submitted to a jury, rather than be determined by the court.

All concurred.

Judgment reversed and new trial granted, with costs to appellants to abide event.  