
    *Gordon and another v. Hostetter.
    
    
      Trover for money embezzled.— Waiver of tort.
    
    Trover may he maintained for money embezzled by the defendant, without proving the specific property taken and converted ; the defendant’s admission is sufficient proof of the conversion, and of the amount of damages.
    In an action in the nature of trover, for money, the plaintiff may, if the evidence warrant it, waive the tort, and have a verdict for money had and received.
    Appeal from the general term of the Supreme Court, in the fifth district, where a judgment entered upon a verdict in favor of the plaintiff, for a reduced amount, had been affirmed.
    This was an action, in the nature of trover, by Robert Gordon and James Purse against Lewis H. Hostetter, to recover damages for the conversion of money alleged to have been embezzled from them by the defendant.
    The complaint alleged, that between the month of September 1860, and the succeeding January, the defendant wrongfully took and converted to his own use, certain money, the property of the plaintiffs, consisting of bank bills and of gold and silver coin, of the amount and value of ninety dollars, to the plaintiffs’ damage $100, for .which they demanded judgment. The answer denied each of these allegations.
    It appeared on the trial, that the defendant was in the employment of the plaintiffs, as a salesman in their dry-goods store, from the 12th October to the 20th December 1860. There were eight clerks in the store, all of whom were salesmen, and the course of business was this: Each clerk sold goods, received the pay, ar..d put the money in the drawer. The plaintiffs had no cashier, and they kept no account of. sales, during the day. They‘entered at night in the cash-book, the amount of the day’s sales, arriving at the sum by the amount found in the cash drawer. The duty of the defendant was simply to sell goods, to receive the money, and put it in the cash drawer. He was engaged at a salary of $825 a year, and was about twenty-four years of age. He had received small sums *n *Paymerit ai different times, which he was in the habit of charging to himself, at the time of payment, in the plaintiffs’ book. There was a balance still due on his salary, which the plaintiffs, on the trial, offered to allow, in diminution of the amount claimed, but his counsel declined to accept the offer. While he was in their employment, the plaintiffs missed money, several times; but none, of which they could speak with'certainty, except a quantity of gold, amounting to about $15, which they missed about a week before he left. He was arrested, at the store, on the 20th December. After he was taken, he requested the chief of police and his assistant to return with.him to the store, that he might have an interview with Mr. Gordon, one of the plaintiffs. The latter refused to converse with him, except in presence of the officers. He asked Gordon what they were going to do with him; Gordon said, they were going to send him to state prison; he asked, if Gordon supposed he had stolen their money ; Gordon replied, that he was sure of it. The defendant asked, him, if it could be settled; Gordon, inquired how much he had taken; the defendant answered, “ eighty» five or ninety dollars, within the last month.” Three days afterwards, the plaintiff Purse, at his request, went to see him at the police office. The defendant told him, he would like to settle it; Purse asked him, what amount he had taken from them; he replied, that he had taken from them, at different times, from eighty-five to ninety dollars, not to exceed ninety dollars. These facts were undisputed.
    At the close of the evidence, the defendant’s counsel moved for a dismissal of the complaint, insisting, among other things, that the plaintiffs had not shown that they owned, or that he' had converted, any specific money, either in bills or coin; that, for aught that appeared, he had received the money, as their clerk, from the customers, without putting it in the drawer; and, in that case, they had mistaken their remedy, which should have been by an action for money had and received ; and that, if he hád converted the money as alleged, it was an act of felony, for which he could not be held civilly responsible, until *after conviction. The motion was denied, and the defendant excepted.
    hfo evidence being offered on the part of the defendant, the jury, under the direction of the judge, rendered a verdict in favor of the plaintiffs for $87.10. The court reserved the case for further consideration, and finally ruled, as matter of law: 1. That the action being in the nature of trover, could not be maintained, without proof that certain specific property had been converted by the defendant. 2. That under the complaint, the plaintiffs were not entitled to recover for money had and received, generally, to the plaintiff’s use. 3. That they were not entitled so to amend the complaint as to enable them to recover in that form. 4. That they had failed to prove the conversion of any particular money, except the fifteen dollars in gold. 5. That the verdict should be reduced to fifteen dollars, unless the plaintiffs elected to submit to a nonsuit. The plaintiffs declined so to elect, and excepted to these several rulings.
    Judgment was entered for the reduced amount, in accordance with the rulings of the learned judge; and the same having been affirmed at general term, the plaintiffs took this appeal.'
    
      Marsh, for the appellants.
    
      Perry, for the respondent.
    
      
       Also reported in 4 Abb. Pr. (N. S.) 263.
    
   Porter, J.

(after stating the facts.)—The action was not for the recovery of the specific money embezzled. It was to obtain damages for the defendant’s wrong, in taking from the plaintiff and converting to his own use, coin and bills of a specific value and amount, which were alleged and proved to be their property. By taking and retaining their money, he put it out of their power to distinguish it from other like coin and bills ; and while he admitted the amount taken, he claimed that he was not answerable for the wrong, until they so described what he had embezzled, as to enable him to identify it. The court *not only sustained this view, but also held, that under a complaint alleging the facts, and upon proof of their exact truth, he was not responsible for the amount, even as for moneys had and received. We think the decision erroneous; and, that the judge was right, in the first instance, in directing a verdict for the full amount in favor of the plaintiffs.

Money is as much the subject of conversion as any description of personal chattels. Under the ruling of the court in this case, a party appropriating it wrongfully would ordinarily be secure of immunity. No one, in the practical affairs of life, retains a specific description of each bill which comes to his hands. Our statute of embezzlement assumes this, in making it a criminal offence in a clerk or servant, to “convert to his own use” the money of his employer, or, “ to make away with or secrete it,” with intent to convert it to his own use. (2 R. S. 678, § 59.) If the fact of the unlawful taking be established, and the amount converted is ascertained, the culprit cannot avail himself of his own act, in secreting or destroying the bills, as a protection against civil or criminal prosecution.

In the present case, the fact was established, by the admission of the defendant, that the money which he took was the property of the plaintiffs; and, as the amount was conceded, there was no occasion to prove the particulars, in which the coin and bills in question differed from all others of like denomination. The evidence supplied every fact essential to show the conversion, and to fix the measure of damages. The money was identified so far as was needful to determine the rights of the parties; and the plaintiffs were bound to go no further.

A similar objection was raised in this court, in an action of replevin for bank-bills, which were not so described in the pleadings and proofs as to distinguish them from other similar bank-bills, but which corresponded in amount with the money wrongfully withheld. The appropriate answer was given by Judge Grover, who delivered the opinion of the court: “All that is necessary is, that the proof should be sufficient to enable the court to give judgment for the delivery of the particular thing to which the plaintiff is ^entitled; and if the defendant has so disposed of that thing, that delivery cannot be made upon the execution, then the value is to be collected of the defendant, in satisfaction of the judgment.” (Dudley v. Graves, 20 N. Y. 80.) So, in this case, all that the court could require was, proof of property in the plaintiffs, of conversion by the defendant, and of the damages resulting from the wrong.

It was held, in an early case, that trover “ lies not for .money found, unless it be in a bag or chest.” (Holiday v. Hicks, Cro. Eliz. 661.) But, in another cause, determined two years afterwards, where the plaintiff obtained a verdict for the conversion of part of the contents of a bag of gold, a motion was made in arrest of judgment, on the ground, “ that trover and conversion of money out of a bag cannot be good, because it canuot be known.” The judges held, “that trover and conversion of money only, was good enough; and an action well maintainable for it.” (Draycott v. Piot, Cro. Eliz. 818; Hall v. Dean, Id. 841.)

All doubt on the question, arising from the legal fiction of loss and finding, in the old action of trover, was set at rest in a subsequent case in the exchequer chamber. The objection was there taken, that the action would not lie for money out of a bag, which from the nature of the case could not be identified- “ But,” says Croke, “ all the justices and barons agreed, that it well lies; for, although it was alleged that money lost cannot be known—and so, whether it was the plaintiff’s money, whereof the trover and conversion was—■ yet, the court said, it being found by a jury that he converted the plaintiff’s money, the plaintiff had good cause of action; wherefore, the.judgment, before well given, was now affirmed. The justices and barons said, that this action lies as well for money out of a bag, as of corn which cannot be known.” (Kinaston v. Moor, Cro. Car. 89.) The doctrine of this case has since been accepted as settled law; and trover has been repeatedly held to lie for the conversion of determinate sums, though the specific coin and bills were not identified. “ The design of this action,” as was well said by Bacon, “ is not to recover a thing in specie, but to *recover damages for the conversion thereof.” (7 Bac. Abr. 807, Trover, D.; Chitty on Pleading, 169; Jackson v. Anderson, 4 Taunt. 24, 29; Kimberly v. Patchin, 19 N. Y. 336; Dows v. Bignall, Lalor 407; McNaughton v. Cameron, 44 Barb. 406.)

The case of Orton v. Butler, on which the respondent mainly relies, is irrelevant to the question we have been considering. It arose on demurrer to a hybrid count, in a declaration which alleged that the defendant had received ten shillings to the use of the plaintiff, to be paid to him on request; and that, upon being requested to pay it, he refused, and converted the money to his own use. The plaintiff insisted, that this was a good statement of a cause of action in trover. The court sustained the demurrer, holding that, to make the count sufficient in trover, he should have alleged, either that the money was his, or that it had previously been in his possession. The decision was clearly right, but it has no application to the complaint before us. (5 B. & Aid. 652.) It follows from these views, that the plaintiffs were entitled to the full amount of the verdict, on the basis of a tortious conversion.

It is proper, however, to say, that, even if we had arrived at a different conclusion on this point, we should hold the verdict good, as for moneys had and received, on the waiver by the plaintiffs of the tort alleged. It is true, that, under ordinary circumstances, the refusal to pay over money, had and received to the use of another, is not in law a conversion. It does not, however, follow from this, as a counter proposition, that, under our present system of pleading, a party who has alleged and proved facts, entitling him to judgment as for moneys had and received, will be barred from that relief, by his failure to prove other and further allegations, which would have entitled him to a more stringent remedy. The material averments of the complaint in this regard, were fully sustained by the proof; the facts were undisputed; the defendant was not misled or surprised; and we see no reason why the plaintiffs were not at liberty to waive the tort *and amend their prayer for judgment, if they elected so to do, in view of the adverse ruling of the court. (Byxbie v. Wood, 24 N. Y. 607; Wright v. Hooker, 10 Id. 51; Cobb v. Dows, Id. 335, 342, 346.)

The supreme court was clearly right in holding that, under our statute, the civil remedy of the plaintiffs was neither merged in the alleged felony, nor suspended until the conviction of the offender. (2 R. S. 292, § 2; Code, § 7.) Other objections were raised on the trial, but it is sufficient to say, that we do not consider them well founded. The judgment should be reversed, with final judgment for the plaintiffs on the original verdict.

Judgment accordingly.  