
    Elias Precker, Respondent, v. Albert London, Appellant.
    (Supreme Court, Appellate Term,
    October, 1901.)
    Conversion — Creditor cannot pay himself out of his debtor’s money where he has obtained it by a trick.
    The plaintiff had a check on a bank for one hundred dollars, drawn by a third party, and needed fifteen dollars in cash- to pay a broker. The defendant thereupon said: “ Give me the check and X will cash it for you.” The defendant obtained the money on the check, paid the broker the fifteen dollars and refused on demand to return the balance, withholding it upon the alleged ground that the plaintiff owed him more than that on book account.
    Held, that the defendant was liable as for a conversion of the balance.
    That, although he had obtained possession of the check lawfully his abuse of that possession was a conversion.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan.
    Manheim & Manheim, for appellant.
    Carl L. Schurz, for respondent.
   McAdam, J.

On January 13, 1901, the plaintiff owned and had in his possession a bank check for one hundred dollars, drawn by one Krauz. He needed fifteen dollars in cash to pay one Birnbaum, a broker, whereupon the defendant said " Give me the check and I will cash it for you.” The defendant took the check, paid Birnbaum his fifteen dollar, and refused to return the balance to the plaintiff on the ground that the plaintiff owed him more than that on book account. The action is for converting the check. The plaintiff had judgment for eighty-five dollars, with a provision that the defendant was liable to arrest. The defendant appeals.

Trover lies for paper representatives of value, notes, checks, choses in action, corporate stock, or the like. 4 Am. & Eng. Ency. of Law, 106; Murray v. Burling, 10 Johns. 172. Converson is the gist of the action. This consists in any tortious act by which the defendant deprives the plaintiff of his goods, either wholly or for a time. 2 Starkie Ev. 842.

The conduct of the defendant clearly shows that he intended at the time he received the check to appropriate it to his own use, and he did so convert it. He obtained possession of the check by Ms promise to cash it, which means to obtain the money on it, and hand it over to the plaintiff. He obtained the money but appropriated it to Ms own use. His intent is easily inferred from the act of taking and using the check, which act was fraudulent in its inception and consummation. That the defendant came lawfully into possession of the check is no objection to the action. This is admitted in every action of trover (as distinguished from trespass), which always supposes the defendant to have come lawfully into the possession of the goods. It is the breach of the trust, or .the abuse of lawful possession, which constitutes the conversion. These are familiar principles, as applicable to chattels, and there can be no good reason for not applying them to ekoses in action. Murray v. Burling, supra, 175. In a subsequent case (Woodworth v. Kissam, 15 Johns. 187), it was held, that where a creditor, by fraud or deception; obtains the goods of' Ms debtor, the property is not changed, and he cannot apply them to the satisfaction of his debt, but the debtor may maintain trover against him. The defendant’s possession of the check was for a specific purpose only and the use of it for any other was a tortious act which constituted a conversion. In Justices v. Henderson, 90 N. Y. 12, the defendant, who was a saloonkeeper, received from the complainant, a twenty-dollar gold piece, out of which to take pay for twenty-five cents’ worth of liquor; not being able to make change, the defendant was requested to go out and get the change; he went out and lost the money in gambling. Held, that a conviction for larceny was proper. A bailee who tortiously converts a negotiable instrument may be sued either in trover, or for money had and received. 2 Daniel Neg. Inst., § 1468.

Whether trover for the check was or was not the plaintiff’s appropriate remedy in this instance was not sufficiently raised below to require critical examination on appeal. The sole ground urged on the conclusion of the plaintiff’s case was, that he had not made out a cause of action. This related to the proofs, and not to the form of the action, and, as the evidence clearly established a right of recovery, the objection was unavailing.

An order for the defendant’s arrest might have been granted in the action (N. Y. Consol. Act, Laws of 1882, chap. 410, § 1304, subd. 3), and the fact that he was liable to imprisonment was properly stated in the judgment. Id., § 1386.

The judgment must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.  