
    PROSPECT LAND & IMPROVEMENT CO. v. DOWNEY.
    (Supreme Court, Appellate Division, Second Department.
    July 31, 1914.)
    Appeal from Special Term, Kings County. Action by the Prospect Land & Improvement Company against Wallace Downey. From an interlocutory judgment, both parties appeal. Modified and affirmed.
    George W. Martin, of Brooklyn (Hunter L. Delatour, of Brooklyn, on the brief), for plaintiff.
    J. Bradley Tanner, of New York City (Omri F. Hibbard, of New York City, on the brief), for defendant.
   PER CURIAM.

We think that the evidence in this case establishes misconduct on the part of the defendant, the president of this company, in that he sold property belonging to plaintiff, received the proceeds thereof to his own use, and has failed ever to account for the same. Although his conduct may have been negligent, rather than fraudulent, we think, particularly in view of the stipulation made at the close, of plaintiff’s case, that the matter of accounting should be sent to a referee, that so much of the judgment as is appealed from by defendant should be affirmed, and that the fourth finding of fact should be amended by adding thereto the words, “and has willfully neglected to account for or pay over the same.” With regard to defendant’s claim for compensation while president of the company, we think that the evidence fails to establish either an express agreement that he should be paid therefor, or that such services were outside of the scope of his official duties, either as president or director, and that the judgment should be modified by striking out so much thereof as refers it to the referee to determine “the amount of compensation the defendant is entitled to recover for the services rendered to the plaintiff.” The fifth finding of fact should be amended by striking therefrom the words “which services were outside the scope of his official duties either as president or director, and for which services defendant is entitled to recover a reasonable compensation.” As thus modified, the interlocutory judgment appealed from should be affirmed, with costs to the plaintiff.

PUTNAM, J., took no part.  