
    Sophie Mayer, Appellant, v. T. Judson Kilpatrick et al., Respondents.
    (New York Common Pleas—General Term,
    April, 1894.)
    Plaintiff’s husband, who conducted a business as her agent, upon premises which he individually leased, gave a check against her bank account, against which he was authorized to draw for purposes of the business, in payment for a month’s rent of the premises to defendants, who were the agents of Ms lessor. He afterwards .gave them another check on their claiming that the first one was mislaid or lost, upon their promise to cancel and return the first one when found. Both checks were thereafter presented by defendants and paid, they applying the proceeds of the first one to the payment of other rent wMch they claimed to be due and in arrear, which fact was disputed. Held, that the plaintiff had sufficient title to and right to possession of the check first given to entitle her to maintain an action for conversion thereof, and that defendants were not protected by the fact that in what they did they acted or pretended to act for another.
    Appeal from a judgment for defendants dismissing the complaint.
    Action for damages for the alleged conversion of a check.
    
      Alex. Thain, for appellant.
    
      Eugene D. Ha/whins, for respondents.
   Bischoff, J.

Plaintiff, by Adolph H. Mayer, her husband and agent, conducted a tailoring business in premises of which the husband was the lessee in person and respecting which defendants were the agents of the lessor. In connection with and for the purposes of her businéss plaintiff kept a deposit account with the Riverside Bank, against which her husband was authorized to draw as the exigencies of the business required. On July 11, 1891, the husband paid defendants one month’s rent by a cheek to his order and signed by him “ Adolph H. Mayer, attorney.” Several days later defendants represented that the check had been mislaid or lost, and upon their promise to cancel and return it when found the husband was induced to and did issue another. The substituted check was paid by the bank, and thereafter defendants also presented and received payment of the first. The proceeds of the check agreed to be canceled and returned were applied by defendants in payment of a further month’s rent which they claimed to be due the lessor and in arrear, but the justice of which claim the husband disputed. This action was brought to recover damages for the conversion of the check last mentioned. The foregoing facts appeared in evidence unchallenged when plaintiff closed the introduction of direct evidence, and upon motion of defendants’ counsel the court dismissed the complaint. We are of the opinion that this was error for which the judgment should be reversed.

The specific grounds of the motion for nonsuit were that plaintiff had no beneficial interest in the check alleged to have been converted, or its proceeds, and that the check was given by the husband to pay his personal debt; also, that defendants were not liable because they received the check as agents for the lessor.

In view of the facts that the check alleged to have been converted was rescinded and agreed to be canceled and returned by defendants after another had been given them in its place, and that it does not appear that the husband consented to its application to the payment of his alleged disputed debt, it is too plain to require argument that defendants cannot avail themselves of the protection which the law affords one who, in good faith and in ignorance of the rights of a subsequently ascertained principal, has received payment of a demand against the agent out. of funds belonging to the former. Story Agency, § 444. Neither can the principal authorize, or be deemed to have authorized, the commission of an unlawful act by his agent (Brown v. Howard, 14 Johns. 119), and defendants will not be permitted, therefore, to escape liability because in the conversion of the check they pretended to act for another, the lessor. It remains to consider only whether plaintiff had such an interest in the check or its proceeds as enabled her to maintain this action.

In conversion it must appear that the plaintiff had the legal title to, or a general or special property in, or a right to the possession of the chattel or chose in action which is alleged to have been converted. Cooley Torts (2d ed.), 517; 4 Am. & Eng. Ency. of Law, 117 ; Bush v. Lyon, 9 Cow. 52; Dillenback v. Jerome, 7 id. 294; Hall v. Daggett, 6 id. 653. The burden in this respect was conclusively sustained by the plaintiff, since for the purposes of a nonsuit the truth of every fact of which there is any evidence must be assumed. She authorized the making and utterance of the check; her husband in these matters acted as her agent. In legal intendment, therefore, the check was hers, not that of her agent. Before utterance of the check the legal title thereto was in her; it was her property ; she was entitled to its possession. After it was uttered the title, property and right of possession passed to the payees, but upon its rescission, and the agreement for its cancellation and return, these reverted to her.

The judgment should he reversed and a new trial granted, with costs to appellant to abide the event.

Daly, Oh. J., concurs.

Judgment reversed and new trial granted, with costs to appellant to abide event.  