
    Nathan A. Seagle, as Executor of Annie J. Dade, Deceased, Appellant, v. Katherine E. Barreto, Respondent, Impleaded with Another.
    
      Money had and received — wife not liable for money misappropriated by her husband and deposited by him to her account where same is used entirely for household expenses and for husband’s benefit in absence of notice and demand. /
    
    
      Seagle v. Barreto, 190 App. Div. 549, affirmed.
    (Argued May 9, 1921;
    decided May 31, 1921.)
    Appeal from a judgment, entered March 17, 1920) upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing. a dismissal of the complaint. The action was for money had and received. Prior to February, 1912, defendant’s husband appropriated to his own use a large sum of money belonging to plaintiff’s testatrix, part of which he invested in municipal bonds. Thereafter and during the life of testatrix he sold two of these bonds and deposited the proceeds in a bank to the credit of his wife. Plaintiff seeks to recover the amount so deposited with interest. Defendant testified that the account in which the money was deposited was a household account; that all the money deposited came from her husband; that she drew checks thereon for household expenses and at his direction for other purposes; that she never deposited therein money of her own and that long before this action was commenced the amount so deposited had been withdrawn from the bank and expended either for household expenses, food and clothing or returned to her husband. The Appellate Division held that under these circumstances defendant did not become individually liable and that plaintiff was obliged to show notice and demand while she had the money in her possession to justify recovery.
    
      Clinton T. Taylor and Arthur I. Strang for appellant.
    
      William A. Davidson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Crane and Andrews, JJ. Dissenting: Hogan, Cardozo and McLaughlin, JJ.  