
    The Albany Insurance Co., App’lt, v. Charles A. McAllister, Resp’t.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed September 25, 1890.)
    
    Arrest—Insurance agents—Laws 1878, chap. 688.
    Chapter 688, Laws of 1878, provides that an agent of an insurance company shall be held responsible in a trust or fiduciary capacity for any moneys received by him for such company. By plaintiff’s rules the defendant, an agent, was required to make to plaintiff a monthly report of policies and premiums received and was entitled to credit himself with commissions and expenses, and this report was further to show under an item “ draft to order of company ” the balance due said company. Such statements were rendered, but the drafts not being sent the company brought this action to recover said amounts. Held, that the statute controlled, that the relation of the parties was not that of debtor and creditor, and that an Order of arrest was proper under Code Civ. Pro., 8 549, . subd. 2.
    Appeal 'by plaintiff from an order at special term vacating an order of arrest granted in an action to recover premiums alleged to have been received by defendant while acting as agent for plaintiff.
    
      Wm. McFlroy (0. T. F. Spoor, of counsel), for appl’t; C. D. Hudson, for resp’t.
   Landon, J.

The defendant as agent of the plaintiff, an insurance company, collected in the usual course of business moneys for premiums upon policies issued by him and which after deducting commissions and certain specified expenses it was his duty to account for and pay monthly by draft to the plaintiff. He rendered his account monthly showing the balance which he ought to pay, but he did not pay it. He was not required to pay the specific moneys received by him. It was obviously contemplated that he might pay the monthly balance from any funds which he could command. Chapter 688, Laws of 1873, the first section of which is unrepealed and -in force, declares that such an agent “ shall be held responsible in a trust or fiduciary capacity for any moneys received by him for such company.” Whatever might have been the capacity in which the defendant received the moneys for the plaintiff, independently of the statute, we think the statute characterizes the transaction. It was doubtless one purpose of the statute to permit such a convenient and periodical accounting and payment as were here agreed upon, without changing the fiduciary character of the relation between agent and principal into that of debtor and creditor with respect to the funds received by the agent.

The statute existing, we must give it full force, and assume in the absence of any evidence indicating a contrary intention that the parties made their contract in view of the statute, the principal relying upon its protection and the agent accepting its. burden.

It follows that the defendant received the moneys in a fiduciary capacity and by refusing to pay them violated his trust, and hence the order of arrest was properly granted.

Order reversed, with ten dollars costs and printing disbursements, and motion to vacate denied, with ten dollars costs. Mayham, J., concurs; Learned, P. J., takes no part.  