
    Francisco Roca et al., Resp'ts, v. Anna D. Byrne, Ex'rx, Impl'd, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    1. Principal and agent—When relation exists.
    The relation of debtor and creditor is not inconsistent with the relation of principal and agent, and with the position that the sum owing was received in a fiduciary capacity.
    3. Same -Deposits in deceased agent’s bank account.
    Defendant’s testator was agent for plaintiffs from 1888 to August, 1891, when he died insolvent, being indebted to plaintiffs. A few days previous to his death he received bills of exchange from them, the avails of which were credited on the account and deposited in his bank account, from which he was accustomed to draw for his own account as well as for their business. After his death two more bills of exchange were received, and by someone deposited in the same account. Held, that such moneys were received in a fiduciary capacity, and that a judgment awarding plaintiffs the amount due them, to be paid by the bank out of the account, was correct.
    Appeal from judgment entered after decision at special term.
    
      Michael H. Cardozo, for resp'ts; Benjamin S. Harmon, for app'lt.
   Follett, J.

When the transaction out of which this action arose occurred, the plaintiffs were engaged in business at Grnayaquil, Ecuador, under the firm name of Boca & Henifiques, and Daniel Byrne was a commission merchant, engaged in business in the city of New York. It .is conceded that in February, 1888, Byrne became the agent of the plaintiffs at said city, and so continued until August 2, 1891, when he died. The plaintiffs were accustomed to consign merchandise to Byrne for sale, the proceeds of which were credited to the account of the principals. Byrne also purchased goods at the city of New York for and shipped them to the plaintiffs, which were paid for by the avails of goods consigned to and sold by Byrne, and by bills of exchange sent to him by the plaintiffs. The plaintiffs were also accustomed to draw bills on Byrne, which he accepted, paid, and charged to their account, and interest was charged on the balances against whichever party happened to be the debtor. Every six months the account was settled. On June 30, 1891, a settlement was had of all unsettled matters, and a balance of $24,953.63 was found to be due to Byrne. Six bills, amounting to $9,721.58, drawn by plaintiffs, accepted by Byrne and charged in the account of June 30, fell due after that date, but were not paid by Byrne, and were thereafter paid by the plaintiffs, which reduced their indebtedness to him to $15,232.05. Between June 20 and August 1, 1891, the plaintiffs sent Byrne nine bills drawn on various persons and firms, amounting to $18,313.69, which be and his representative-received and collected, so that the balance due from his estate when this action was begun was $3,081.64. During the period covered by the transactions involved in this litigation Byrne kept an account with the Corn Exchange Bank, to the credit of which all bis own money, as well as the avails of merchandise and bills of exchange received from the plaintiffs, were deposited, and against which lie drew for his own account and benefit, and also-in conducting the business of the plaintiffs. On July 25, 1891,. Byrne received from the plaintiffs two bills of exchange amounting to $2,474.06, which, on that day, he deposited in said bank to-the credit of his account On July 30, 1891, he received from plaintiffs a bill of exchange for $2,000, which on the same day he deposited in said bank to bis credit. On August 2,1891, Byrne died insolvent On August 5, 1891, some person, claiming to act for the estate of Bjume, received from plaintiffs a bill of exchange for $440, the avails of which, amounting to $489.61, were on the same day deposited to the credit of said account in said bank, and on August 31, 1891, some person, claiming to act for the estate of Byrne, received from the plaintiffs a bill of exchange for $600, the avails of which were, on the same day, deposited to the credit of said account in said bank. The bills described, aggregating $5,513.67, were four of the nine bills which aggregated $18,313.-69, above mentioned.

This action was brought to compel the application of as much of said bank account as was necessary to pay the sum due from. Byrne to the plaintiffs, on the theory that the bills of exchange and their avails were received in a fiduciary capacity.

It is alleged in the complaint, and admitted by the answer, that the avails of the four drafts were deposited in the bank at the dates mentioned; and it was conceded on the trial that when this action was begun $4,514.05 of the money derived from the four bills of exchange were on deposit to the credit of said account. The action was defended on the theory that the relation between the parties was that of debtor and creditor. That this relation did exist is quite apparent. Indeed, it is a necessary foundation for the action. But the relation of debtor and creditor is not inconsistent with the relation of principal and agent, and with the position that the sum owing was received in a fiduciary capacity. National Bank v. Ins. Co., 104 U. S., 54. The plaintiffs alleged in the complaint that Byrne was their agent in these matters, which allegation was admitted by the answer. It was also conceded by the written stipulation signed by the parties, and introduced in evidence upon the trial, that Byrne was the agent of these plaintiffs from February, 1888, down to the time of his death.

How it can be claimed, in the face of these admissions, that Bvrne was not acting in a fiduciary capacity, and that he did not receive these various sums to be expended in the business of the plaintiffs, is quite impossible to see.

The rule is well settled that when an agent receives money or property from his principal, that they may be reclaimed as between the parties, and before other persons have, in good faith, acquired rights in them, so long as the money or the avails of the property can be traced. Knatchbull v. Hallett, L. R., 13 Ch. Div., 696; Pennell v. Deffell, 4 De Gex, M. & G., 372; National Bank v. Ins. Co., 104 U. S., 54; Van Alen v. American National Bank, 52 N. Y., 1; Newton v. Porter, 69 id., 133; Cavin v. Gleason, 105 id., 256; 7 St. Rep., 13.

In this case it was conceded that the avails of the four bills of exchange sent by the plaintiffs to Byrne were credited to the account, and that more than $4,500 of the moneys so derived were in the bank to the credit of the account when this action was begun. The last two drafts, amounting to $1,039.61, were received after the business relations between the plaintiffs and Byrne were dissolved by the 1 atter’s death, and were appropriated without right by some one assuming to act for Byrne’s estate, and the avails deposited to the credit of this account.

The judgment awarding the plaintiffs the amount due them, to be paid by the bank out of the account, was correct, and should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.  