
    Benjamin Crosby, Resp’t, v. William H. Clark, as Executor, etc., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Money had and received—What constitutes.
    A failure to apply money, entrusted to defendant for such purposes, to such end entitles to a recovery, without proof of how he disposed of it.
    Appeal from a judgment in favor of plaintiff.
    
      William Vanamee, for app’lt; Daniel Finn, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiff, entered upon the report of a referee in a reference of a disputed claim under the statute. The plaintiff’s claim was for $1,000 given to the deceased, in 1884, for investment on a mortgage to be made by one Webster. The plaintiff claimed that the money was not so invested, but appropriated by the deceased to his own use. That the money was left with defendant for investment in this intended mortgage, and that it was not so invested, no loan being made to Webster, was proved on the trial, and is, as we understand, conceded by the appellant. No evidence of a return of the inonej'- by deceased, or its subsequent investment or application for the benefit of the plaintiff, was given. The appellant contends that the facts proved were insufficient to authorize a recovery for the cause of action stated in the complaint, and that the plaintiff, to entitle himself to prevail, was bound to show how deceased had appropriated the money. It may be conceded that, in dealings between principal and agent, or master and servant, the law will presume that the agent or servant who has been in the habit of paying over the moneys received by him has properly accounted for the principal’s money which has come into his hands, and that the burden of proof resting on the principal is not satisfied merely bji evidence showing the receipt by the defendant of money of the principal. Turner v. Kouwenhoven, 100 N. Y. 115. But in this case we think that the burden was fully satisfied. The money was intrusted to, the deceased for application for a particular purpose. That he failed to so apply it is proved. I see no good reason in the evidence to show why the loan could not have been made. The $800 due on the old mortgage could have been paid out of the proceeds of the new mortgage. Having failed to apply the money to the use for which it had been received, it then became incumbent on the agent to show either that be had returned the money, or in some manner applied it to the use of his principal. As this was not shown, we think the judgment was properly rendered for the plaintiff.

The judgment appealed from should be affirmed, with costs.

All concur.  