
    Anna R. Harlow, Resp’t, v. Abner Mills, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed Dec. 8, 1890.)
    
    Money had and received—Liability for loss by failure of bank.
    Defendant, who had acted as administrator of plaintiff’s father, after his discharge as such received the proceeds of sale of a farm and personal •property, which lie claimed to keep as administrator and deposited m a "bank which failed two months thereafter. Held, that it was the duty of defendant to pay over such money immediately, and he was liable for the money so lost and legal interest thereon.
    
      Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    
      T. A. Read (A. S. Cassedy, of counsel), for app’lt; Daniel Finn ( Wm. Vdnamee, of counsel), for resp’t.
   Barnard, P. J.

William D. Harlow died intestate in 1874, leaving four children. The plaintiff is one of them. He left a widow, who has since died. He left a farm of land, which was sold in September, 1884, for $14,341.25. There was personal property sold to the amount of $1,670.75. The whole of the proceeds of the real and personal estate went into the hands of the defendant at the time. He managed the sale, which was perfected by a deed signed by the children of the deceased. There was no arrangement between the plaintiff and defendant under which the defendant took the money for the farm. He was a cousin of the plaintiff, and took the moneys for the children. He was administrator of the estate. These payments were made at different times. This action is brought to recover the balance due her from the proceeds of her father’s property. The personal estate was settled before the surrogate in 1880. The defendant deposited the moneys he received with the exception of a small sum represented by a note given for a part of the personal property in the Middletown Rational Bank. The bank failed, and some twenty per cent, of the money was lost by the defendant. The money had been in the bank about two months before the failure. When the defendant received the money, it was his duty to pay it over at once, and for that purpose to seek his creditor. Mills v. Mills, 115 N. Y., 80; 23 N. Y. State Rep., 604.

The deposit of the money for two months was wholly without authority, and the defendant cannot throw the loss occasioned thereby upon the plaintiff, who did not assent to the same. There is nothing in the proof which will justify an inference that the plaintiff assented to defendant’s custody of the money. He claimed to keep it as administrator, and the plaintiff was not informed that he could not keep it as administrator until quite recently, and some years after he was discharged as administrator of the personal estate. The case thus shows a detention of money without authority, and -under the line of cases which hold defendant’s obligation to require immediate payment over, a loss by failure of the bank in such a case falls upon the debtor. There are cases which hold a trustee or public officer who deposited money in a bank of good standing, and without negligence on his part, will not be liable if the bank fails. People ex rel. Nash v. Faulkner, Exr., 107 N. Y., 477; 12 N. Y. State Rep., 271.

The facts found do not bring this case under the principle governing the liability of trustees or public officers. The complaint is one upon contract. The words averring a wrongful holding and a wrongful conversion are not inconsistent with an averment of a contract, and such words may be disregarded upon the trial. Conaughty v. Nichols, 42 N. Y., 83.

Assuming a liability, there is no reason why the legal rate of interest should not be added. The case cited' for a contrary rule, King v. Talbot, 40 N. Y., 76, was as to the liability of a trustee and executor. The defendant is liable if at all like any other debtor, and it is no defense that a bank in which he deposited money failed.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  