
    Euphemia Larbig, Respondent, v. Edwin H. Peck and Walter J. Peck, Appellants.
    
      Hrroneous statement of the evidence by the court to the jury—Statute of Limitations in case of a deposit — deposit of money by the son of the actual depositor—effect of such son thereafter redelivering a note given .therefw—refusal to cha/rge a con-ect proposition, when not ground for a reversal.
    
    The verdict of a jury rendered in a civil case will not be set aside on account of an exception to an erroneous statement of, fact in the charge, where the court expressly leaves the facts to the jury and admits to the jury-that the recollection of the court thereon may be erroneous and no request is made that the testimony be read.
    The Statute of Limitations does not begin to run against the-right to maintain an action to recover moneys received on deposit until a demand is made therefor.
    In an action brought to recover the balance of an alleged deposit made by -the plaintiff with the defendants, it appeared'that the money was delivered to the defendants by the plaintiff’s son, who was a bookkeeper employed by the defendants, and that plaintiff’s son, at the same time, or shortly thereafter, filled out a demand note therefor, payable to the order of one of the defendants, who signed, indorsed and delivered the same to plaintiff’s son; that some years later the defendants discovered a shortage in the accounts of the plaintiff’s son, and that the latter redelivered the defendants’ note to them on account of such-shortage; that some months later the plaintiff made a demand for the moneys, and that the defendants thereupon sent to the plaintiff’s son a statement of his account, together with a check for thirty-seven dollars and forty-seven cents, which represented the balance in his favor as shown by said statement.
    The defense interposed by the defendants was that the money was loaned and , that the Statute of Limitations had run against the cause of action, and also that the plaintiff’s son had represented to them that the- money belonged to him and that they had no knowledge or notice to the contrary until after the note had been redelivered to them on account of the shortage of the plaintiff’s, son. .
    
      Held, that a request to charge that “If the defendant Walter J. Peck, receiving this money without any knowledge or information that it belonged to the plaintiff, and continued to hold the money without any such knowledge or information, and believing that it was the money of John W. Larbig (who was plaintiff's son) and finally made a settlement with John W. Larbig for moneys taken by John W. Larbig, receiving this note in payment for such moneys in good faith and without any knowledge or information that it belonged to the plaintiff, and paying over to him the balance, then the defendants are not liable,” stated a correct abstract proposition of law, but that the refusal of the court to charge such request did not require a reversal, it appearing that the court intended to charge the jury substantially to that effect, and that the error would have been corrected it it had been again brought to the attention of the court.
    Appeal by the defendants, Edwin H. Peck and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1901, upon the verdict of a jury, and also from an order bearing date the 25th day of February, 1901, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    
      George 8. Hamlin, for the appellants.
    
      James W. Hyde, for the respondent.
   Laughlin, J.:

The action is brought to recover the balance of an alleged deposit made with the defendant Walter J. Peck on the 25th day of February, 1889. The receipt of the money was admitted, but the defendants claim, among other things, that it was a loan and that the Statute of Limitations has run against the cause of action. They further claim that the transaction was with the plaintiff’s son; who was in their employ as a bookkeeper, and that he represented to them that it was his money and they had no notice or knowledge to the contrary. ' The jury found that the money belonged to the plaintiff and their finding is amply supported by the evidence. The amount of plaintiff’s money delivered to the defendant Walter J. Peck was $7,500, which consisted of $500 in cash and two notes for $3,000 and $4,000 respectively, indorsed by the plaintiff in blank. The plaintiff’s son filled out a demand note therefor at six per cent interest, payable to the order of Walter J. Peck, who signed, indorsed and delivered the same to him.

The plaintiff’s testimony shows that she did not authorize her son to accept the note and had no knowledge of such acceptance until shortly before bringing the action. The evidence was conflicting as to whether the note was given in fulfillment of an agreement made at the time of the deposit of the moneys or whether it was a subsequent independent transaction. The court properly submitted this question to the jury under instructions that the son having been Ms mother’s agent to negotiate the deposit or loan, was authorized to accept the note for her if it was part of the original transaction, otherwise not. The only evidence as to the lapse of time after the deposit before the noté Was given is the note itself, which bears date the day of the deposit, the testimony of plaintiff’s son to the effect that he placed it in defendants’ safe on that day and his testimony to the effect, that after depositing the moneys in the bank pursuant to the direction of the defendant Walter J. Peck, he drew the note and presented the samó to Peck for his signature.

The court, evidently misunderstanding this testimbhy, mis-stated it to the jury, and said that the testimony of plaintiff’s son was to the effect that the note was delivered to him several days, a week or two,” after the deposit was made ; but later he said, The jury will recollect the evidence in that respect if the court is wrong, as to the time when the note was given. If that is not the fact the jury will remember it and not be guided by what I say.” At the close of the charge defendants’ counsel excepted to this erroneous statement of the evidence by the court, whereupon the court again admonished the jury that they must depend upon their own recollection of the testimony and not be guided by what he said in the charge. The defendants’ counsel evidently did not recall the testimony correctly, for he said to the court that at the utmost the statement was only that the note was given a day or two after.” We cannot set aside the verdict of a jury, in a civil case at least, on account of an exception to an erroneous statement of fact in the charge, where the court expressly leaves the facts to the jury and admits to the jury that the recollection of. the court thereon may be erroneous, and no request is made that the testimony be read.

The evidence also presented a fair question of fact as to whether the money was received by the defendant Walter J. Péck oñ deposit or as a loan, and we would not be justified in disturbing the verdict of the jury, which is to the effect that the money was received on deposit. This claim would not be barred, therefore, by the Statute of Limitations, inasmuch as no demand was. made which set the statute running. About a year after the defendant Walter J. Peck received this money on deposit he took his brother, the defendant Edwin H. Peck, into partnership with him. This indebtedness was transferred to the books of the firm and was treated and considered as a firm liability, as were all the other business obligations of said Walter J. Peck. On the 18th day of March, 1891, the firm paid $1,000 to apply on this indebtedness by a firm check, payable to the plaintiff’s order, the signature being written by Edwin J. Peck. The evidence fairly warranted the submission to the jury of the question as to whether the firm did not assume this liability, and the jury have answered it in the affirmative.

On the 4th day of December, 1897, the defendants, as the result of an extended examination of their books bv expert accountants, discovered a considerable shortage in the accounts of plaintiff’s son. He was called in and confronted with the statements of the experts, which he was unable to explain. He, however, insisted that he had not taken any of the defendants’ moneys, and that, if he had time, he could discover the error. The shortage appeared to have accumulated during a series of years. When asked why he had not reported the' matter to his employers, he replied that they had sufficient of his moneys to make up any deficiency. There was evidence to show that, upon its being suggested that he had defendants’ note for these moneys, he went to the-safe, produced the note and indorsed and delivered it to the defendants. The.report of the experts stated the amount of cash received and accounted for and showed a deficiency of $6,396.90, and plaintiff’s son, at their request, signed it. This constitutes the entire transaction, so far as shown by the record before us with reference to the redelivery of the note. It will be observed that there was no definite agreement with reference to the settlement or as to whether the note was to be merely held as security or applied in extinguishment of the indebtedness.

Some months later, and after plaintiff’s son left the employ of the defendants, she demanded the return of the money deposited. According to the testimony of the defendants they had no notice prior to this time, or knowledge of her claim of ownership, and they stated to her the manner in which the matter had been adjusted with her son. She, however, controverted this, and claims that at that time they acknowledged that they still held her money, and promised to send her a statement concerning the same. The testimony of the son was to the effect that they were informed by him at the time of the original transaction that the money belonged to his mother. A few days after the demand by the plaintiff, and on Hay 3, 1898, the defendants inclosed to plaintiff’s son a statement of their account with him, in which they credited him under date of November 30, 1897, with the balance of this noté, and interest, and also inclosed a check payable to his order for thirty-seven dollars and forty-seven cents, the balance in his favor as shown by said statement. The testimony of defendants’ expert is that this check has not been used, and, as printed in the record, it does not appear •to have been either indorsed by plaintiff’s son or paid.

In advance of the charge defendants’ counsel presented to the court thirty-five written requests to charge. At the close of the main charge defendants’ counsel excepted generally to the refusal of the court to charge each of the requests submitted and to any modification thereof which the court charged as modified, whereupon, the court said: “ Of the thirty-five requests which the defendants have submitted to the Court, I have marked each one of them as charged or refused to charge. I think I have embodied in my charge all'that yon have requested, and which I -have marked as charged; and to those which I have marked as being ref used, either as propositions of law- or because they were' questions for the jury, you may have an exception to. Call my attention, however, if you have observed that I have omitted anything which I have marked as charged.”

Defendants’ counsel thereupon took several exceptions to the charge, none of which require consideration. Requests 13, 14 and-15 were marked by the court as charged. They were to the effect that if the money belonged to plaintiff, but she clothed her son with the indicia of title and apparent power of disposition, then the defendants, in the absence of notice or knowledge -to the contrary, were justified in treating the son as the principal and real owner.

The record recites that the requests marked “ Charged” were not separately charged, and were not in fact' charged Unless embraced in the main charge. The main charge did not cover these propositions. The court marked request No. 23 “ refused.” ' It reads as follows : “ If the defendant Walter J. Peck, receiving this money without any knowledge or information that it belonged to the plaintiff, and continued to hold the money without any such knowledge or information, and believing that it was the money of John W. Larbig (who was plaintiff’s son) and finally made a settlement with John W. Larbig for moneys taken by John W. Larbig, receiving this note in payment for such moneys in good faith and without any knowledge or information that it belonged to the plaintiff, and paying over to him the balance, then the defendants are not •liable.”'

The attention of the court was not drawn to the fact that requests 13, 14 and 15 had not been charged. If they had been charged, the refusal of the court to charge the 23d request might not be error. While we think defendant’s 23d request was a correct abstract proposition of law (Chapman v. Ogden, 37 App. Div. 355; affd., 165 N. Y. 642), the refusal of the court to so charge does not require a reversal. The defendants’ counsel could by looking over the requests as marked by the court have observed that the court intended to instruct the jury substantially to that effect', and the matter should have been again brought to the attention of the court. Furthermore, the request assumes that the balance has been paid over to the plaintiff’s son, which, as has been seen, is not the fact. Again, the testimony scarcely warranted the finding of a settlement between the defendants and plaintiff’s son. The real settlement was the statement of the account and the inclosing of the check for the balance after the defendants became aware of plaintiff’s claim. They at most received the note, which, on account of the Statute of Limitations, was not enforcible against them, on the understanding that it was to be applied on account of the existing indebtedness of plaintiff’s son to them. This did not constitute an irrevocable obligation on their part to so credit the note, and there is no evidence that the defendants have lost any right or remedy or have been in any manner prejudiced. (Phœnix Ins. Co. v. Church, 81 N. Y. 218; Weaver v. Barden, 49 id. 286.) The defendants neither surrendered any security, relinquished any right or advanced any new consideration. They, therefore, took the note subject to the equities of the plaintiff whose moneys on deposit with them it represented, and who had not authorized her son to accept the note for her. (Lawrence v. Clark, 36 N. Y. 128; Kaminski v. Schefer, 46 App. Div. 170; Taft r. Chapman, 50 N. Y. 445; Moore v. Ryder, 65 id. 438; Weaver v. Barden, supra.)

Had they paid the check in good faith without notice of plaintiff’s claim, they would have been protected to that extent (Kaminski v. Schefer, supra), but it will be observed that not only has the check not been paid, but it was not drawn until after they had full notice of plaintiff’s claim of ownership. We have examined the other points'presented, but find no substantial or prejudicial error requiring a reversal.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.  