
    ARNOLD v. FERGUSON et al.
    (Supreme Court, Appellate Term.
    November 11, 1910.)
    Trover and Conversion (§ 40)—Sufficiency of Evidence.
    In an action for the conversion of money received by defendant as agent of plaintiff’s assignor, which was collected for goods sold by the assignor, evidence held to show authority given to defendant by the assignor to collect the money and apply it to defendant’s own debt.
    [Ed- Note.—For other cases, see Trover and Conversion, Dec. Dig. § 40.*]
    Appeal from Municipal Court, Borough of Manhattan, First District.
    
      Action by Morris B. Arnold, trustee in bankruptcy of the assets and effects of Davis Rodbell, bankrupt, against Benjamin Ferguson and another, copartners, trading as Ferguson & Co. From a judgment dismissing the complaint on the merits, plaintiff appeals.
    Affirmed, as modified.
    Argued before SFABURY, PAGE, and BIJUR, JJ.
    Samuel S. Breslin, for appellant.
    Monfried & Feinberg, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BIJUR, J.

Plaintiff sues in conversion (so stating the theory of his case upon the record) for moneys received by the defendants as agents for plaintiff’s^ assignor. In addition to the sound reasoning of Justice Noonan in his opinion below, on which the case could be affirmed, the fact may be pointed out that plaintiff’s assignor, at an interview with one of defendants, said:

“I haven’t got no money. Ask Farwell [who owed for the goods] for money.”

This implies an authorization to collect and apply this money to the defendant’s own debt.

The judgment absolute below, however, should be modified to a judgment dismissing the complaint without prejudice, and, as so modified, affirmed, with costs. All concur.  