
    Burhans v. Casey.
    Where it appears by tbe pleadings, that the plaintiff deposited money with the defendant to pay for him to a third party, (the defendant being surety for the payment thereof to such third party,) which money is in the defendant’s possession, the court will order it to be deposited in court or paid to such third party, under subdivision fifth of section 244 of the code as amended in J uly, 1851.
    December 6, 1851.
    Motion that the defendant pay over money, &c. The complaint was for money had and received by the defendant in a fiduciary capacity, praying for its payment with interest, or for other relief. The answer stated that the defendant was the surety for the plaintiff for the payment of the rent in a lease to the latter executed by Florence & Harpel. That on the 7th of August, 1851, the plaintiff being in arrear for the rent, he paid to the defendant $150, to be applied on account of the rent of which it was only a part. That the defendant still holds the $150 under his control, and no request or demand had been made by plaintiff to pay the amount back to him, which the defendant has been at all times willing to do.
    
      
      A. Mathews, for tbe plaintiff.
    
      J. Parlcer, for the defendant.
   Sandeokd, J.,

(three other Justices concurring,) held that the answer in effect admitted that the defendant had in his possession, or under his control, money, the subject of the litigation, which was held by him as trustee for another party, or which belongs to another party, and that the plaintiff was entitled to an order that the same be deposited in .court or delivered to such party pursuant to the fifth subdivision of section 244 of the code of procedure as amended in July last. An order was entered to the effect, that the defendant should, within ten days, pay to the clerk of the court the $150, to abide the further order of the court, or deliver to the plaintiff’s attorney the receipt of Florence & Harpel for that sum as paid by the plaintiff through the defendant, on account of the rent in question. (The order was subsequently affirmed on appeal to the general term, all the Justices concurring.)  