
    THOMPSON v. VROOMAN.
    (Supreme Court, General Term, Third Department.
    December 8, 1892.)
    1. Appeal—Review—Weight op Evidence. On questions of fact the appellate court will not reverse unless the evidence in favor of appellant greatly preponderates.
    2. Action fob Convebsion—Findings—Habmless Ebbob. In an action for the wrongful appropriation of money, where plaintiff alleged facts constituting a conversion, without expressly so characterizing it, the refusal of the referee to "find that the complaint alleged a cause of action in tort, and not in contract, if erroneous, was not prejudicial, as a complaint alleging a conversion necessarily alleges a cause of action in tort.
    8. Same. In such a case, where the referee found that defendant was guilty of conversion, it was harmless error to refuse to find that, “in order to maintain the action in its present form, it must affirmatively appear that defendant, has been guilty of conversion. ”
    4. Same. Where, in an action for conversion, the complaint alleged'and the evidence showed that defendant received plaintiff’s money as his agent, to deposit it in bank in plaintiff’s name, and he wrongly deposited it on his own account, and subsequently "drew it out, though it was not alleged in express terms that defendant acted in a fiduciary capacity, it was not error for the referee to decline to find that defendant was in no way so acting. Mayham, P. J., dissenting.
    5. Same—Evidence—Admissibility. In an action for conversion of pension money received by plaintiff, and given by him to defendant to deposit, the overruling of an objection to a question asked of plaintiff if he made an application for a pension on account of his son being killed in the army was harmless error.
    6. Same—Necessity op Pbevious Demand. In such a case no demand by plaintiff is necessary before the commencement of the action.
    7. Same—Evidence—Statement op Conclusion. Defendant, instead of depositing the money to plaintiff’s credit, deposited it to his own account, and subsequently drew it out of bank. Plaintiff was asked if he consented to such withdrawal of the money by defendant, to which plaintiff answered in the negative. Held, that the question was properly allowed to be answered, as calling for a fact. Mayham, P. J., dissenting.
    8. Same—Evidence—Showing a Negative. In such a case, as the want of consent could only be proved in the way allowed by the referee, plaintiff was properly allowed to show a negative.
    9. Stipulations—Evidence—Statement op Account. Where it is admitted in a stipulation appended to a statement of account that the latter is “correct, and a true copy of the books kept by” a certain bank, and it stipulated that the statement may be read “as original evidence, and as equal evidence with the books,” it is not necessary, before reading the statement, to lay a foundation by proving the authenticity and correctness of the books of which it purports to be a copy. Mayham, P. J., dissenting.
    Appeal from judgment on report of referee.
    Action by William Thompson against Cornelius P. Vrooman. From a judgment for plaintiff entered on a referee’s report, defendant appeals. Affirmed.
    Plaintiff, an ignorant colored man, was awarded a pension, and, receiving his first check therefor, asked defendant’s assistance in depositing it in bank. The deposit was -made on defendant’s" account, and he gave plaintiff small sums of money as the latter needed them. The bank subsequently failed, and plaintiff brought the action for the amount of the deposit.
    The complaint was as follows;
    
      “The plaintiff complains against the defendant and alleges: That on or about the 36th day of May, 1887, the plaintiff, having received about the sum of $1,500, pension money, delivered or caused to be delivered to the defendant the sum of $1,000 thereof, with directions to defendant to place the same on deposit with the firm of H. R. Pierson & Son. bankers, in their bank in the city of Albany, H. Y., to remain there on interest for the benefit of this plaintiff. That the defendant received and agreed so to deposit the same with said firm of bankers. That at said time the defendant did deposit said money with said bankers, and, as this plaintiff supposed, in the name and to the credit of this plaintiff; but, on the contrary, as plaintiff is informed and believes to be true, said deposit was made by said defendant in the name and to the credit of said defendant. That the defendant was not the owner of, and had no interest in, said $1,000, but the same belonged to and the plaintiff was the owner thereof. That thereafter, and prior to the 5th day of October, 1888, as the plaintiff is informed and believes to be true, the said defendant, without the knowledge or consent of this plaintiff, wrongfully and unlawfully withdrew all of said money and deposit from $aid bank and said firm of bankers, and wrongfully and unlawfully appropriated and converted the same to his own use. That said money so deposited as aforesaid was of the value of $1,000. (3) That before the commencement of this action the plaintiff demanded the said $1,000 of the defendant, which he refused and still refuses to pay. Wherefore plaintiff demands judgment against the defendant for the sum of $1,000, and interest thereon. ”
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    D. S. Mayham, for appellant.
    Hinman & Dugan, for respondent.
    On questions of fact the appellate court will not reverse unless the evidence in favor of appellant greatly preponderates. Booth v. Simpson, (Com. Pl. N. Y.) 18 N. Y. Supp. 951; Wheatland v. Pryor, (Sup.) 14 N. Y. Supp. 533; Bank v. Crosby, (Sup.) 1 N. Y. Supp. 256; Sherwood v. Hauser, 94 N. Y. 626; Roosa v. Smith, 17 Hun, 138; Baird v. Mayor, etc., of New York, 96 N. Y. 567; Crane v. Baudouine, 55 N. Y. 256; Westerlo v. De Witt, 36 N. Y. 340; Bank v. Herrat, 19 Daily Reg. 129; Ellis v. Machine Co., 9 Daly, 78; Kozer v. Sommer, (Sup.) 19 N. Y. Supp. 449.
   PUTNAM, J.

This action is brought for the wrongful conversion of $1,0001 The complaint alleges that on the 26th day of May, 1867, plaintiff delivered to defendant the sum of $1,000, with directions to place the same on deposit with H. R. Pierson & Son, bankers in Albany, N. Y., to remain there on interest for the benefit of plaintiff. Defendant, receiving and agreeing to so deposit said money, in fact deposited the same to his own credit. He was not the owner of, and had no interest in, said money. That the same belonged to plaintiff. That thereafter, and prior to October 5, 1888,'defendant, without the knowledge or consent of plaintiff, unlawfully withdrew said money, and unlawfully appropriated and converted the same to his own use. While the complaint does not characterize the deposit of this money by defendant in his own name as a conversión, yet it states all the facts, showing that such deposit by defendant was a wrongful appropriation of the fund. And the complaint also alleges a conversion by the wrongful withdrawing and use of the said money. Defendant, in his answer, alleges that the deposit of the said money in his own name was done with the knowledge and consent of the plaintiff, and denies any wrongful appropriation of the same.

The case presents a question of fact, which the referee has determined in favor of the plaintiff. I have examined the testimony given upon the trial and the briefs submitted by counsel with care. The evidence was conflicting, and the referee might have reached a different conclusion from that arrived at. There was testimony in the case from which he could have determined that the money in suit was deposited in the defendant’s name with the consent of plaintiff, but I think there was sufficient evidence given to sustain.the referee’s finding on the question presented for his decision. The rule is familiar that on questions of fact the appellate court will not reverse unless the evidence in favor of the appellant greatly preponderates. Authorities sustaining this rule are cited by respondent, and need not be discussed here. I think that this case does not present such a preponderance of evidence of the defendant as will justify a reversal of the judgment. On the contrary, if it were my duty to pass upon the testimony as an original question, I should hesitate before coming to a different conclusion from that reached by the learned referee.

Counsel for appellant suggests that the referee erred in declining, at defendant’s request, to find that “the complaint alleged a cause of action in tort, not contract,” and also in refusing to find that, “in order to maintain the action in its present form, it must affirmatively appear that the defendant has been guilty of conversion.” These errors, if they should be deemed such, are harmless. The complaint clearly alleges a cause of action in tort, and I see no reason why the referee should characterize it. The defendant has suffered no injury by his declining to find that a complaint plainly alleging a conversion contains a cause of action in tort. Again, in his findings, the referee distinctly determines that the defendant was guilty of a conversion of the money in suit, and a refusal to repeat the finding can produce no injury. The referee did not err in declining to find that defendant was in no way acting in a fiduciary capacity.” He did find properly, on the evidence in the case, that the defendant received $1,000, as the agent of plaintiff, to deposit; hence defendant was acting in a fiduciary capacity. But it is suggested that there was no allegation in the complaint that a fiduciary relation existed. It is true that the complaint does not use-the word “fiduciary,” but facts are stated showing that defendant received the money to deposit, and hence that the relation of principal and agent existed. Where an agent takes money from a principal to deposit in a bank in the principal’s name, it cannot be said that the agent was “not in any way acting in a fiduciary capacity.” See Flagg v. Ely, 1 Edm. Sel. Cas. 206. Hence the above request of the defendant to find was properly refused by the referee. I think the error of-the court below, if any, in overruling the objection to this question asked of plaintiff, viz., “ Did you make an application for a pension on account of your son being killed in the war? ” harmless. The error could not possibly produce any injury to the defendant. The statement from the books of the bank was properly received in evidence, under the stipulation. That stipulation provided that the statement might be read as original evidence; that it was correct as to the amount of deposits to the credit of defendant, and the amount drawn out by him. As we have seen, the evidence in the case is sufficient to sustain the findings of the referee that there was a wrongful deposit of the money in suit by defendant in his own name, and also a wrongful withdrawing and conversion of said fund. Hence no demand prior to the commencement of the action was necessary to be made by the plaintiff, and therefore the exception to the rulings of the referee admitting Exhibit D are not well taken.

It is insisted that the referee erred in overruling objections to the following, question asked of plaintiff, viz.:

“Did you consent that Mr, Vrooman should draw the $1,000 from H. R. Pierson & Son’s bank? (Objected to.) * * * No, sir. No, I didn’t consent that he might use it. I didn’t know that he had done so. 1 knew nothing about it until the bank had failed. ” '

I .think the. question was properly allowed to be answered, as calling for a fact; that the case was one w'here the plaintiff could properly show a negative. It was competent for the plaintiff to establish the fact that the withdrawal of the funds by the defendant was not done with his consent. This fact could only be shown in the way allowed by the referee. See Crane v. Baudouine, 55 N. Y. 263; Huggans v. Fryer, 1 Lans. 277; People v. Tubbs, 37 N. Y. 589; Crouse v. Garlock, 45 How. Pr. 85. There are other exceptions taken not necessary to be considered. The judgment should be affirmed, with costs.

HERRICK, J., concurs.

MAYHAM, P. J.,

(dissenting.) The complaint in this action alleges that the plaintiff delivered to the defendant $1,000, with direction to him to deposit the same with the firm of H. R. Pierson & Son, to remain there on interest for the benefit of the plaintiff, and that the defendant did deposit the same with said firm. That defendant had no interest in the money, but the same belonged to the plaintiff. The complaint charges that the defendant afterwards wrongfully withdrew this money from said firm, and wrongfully converted the same to his own use, and demands judgment for $1,000, and interest. The answer denies, in substance, that the defendant agreed to deposit this money for plaintiff, and alleges that the plaintiff directed that defendant should deposit the same to his own credit, as his own, and that the plaintiff was to look to him for the same. The answer also alleges that, from time to time, the plaintiff called upon the defendant for payments on account of said money, and received from the defendant various payments on account of the same. The answer also sets up offsets and counterclaims. The main question'litigated in this action was whether the money was received by the defendant in the nature of a loan, to be deposited with the defendant, to be accounted for by him to the plaintiff, or was received by him solely for the purpose of being by him deposited with Pierson & Son in the name of and to the credit of the plaintiff, and subject only to his check. If the latter, then his withdrawing it from the bank in his own name was a conversion; if the former, then the title to the money vested in the defendant, and he became the debtor of the plaintiff in that amount, and was liable only for money had and received, and an action for a conversion of this money would lie. To constitute a conversion by one person of the property of another, the title to, or right of possession of, the money converted must be in the plaintiff, and the possession of the same must be wrongfully taken or detained by the defendant. Ordinarily, where a party seeks to recover,for the conversion of a chattel, he must show his right to the identical chattel which he claims has been converted. If the money was loaned, so that the claim of the plaintiff against the defendant was for the value of the money, and not the identical money itself, then the title to the' same vested in the defendant, and trover would not lie. In McNaughton v. Cameron, 44 Barb. 409, the court say: “It all depends upon the question whether the title to the money passed to the defendant.” If, therefore, this money or this check was delivered by the plaintiff to the defendant to be deposited in his name to his credit, the title to the same passed to him, and he became the debtor of the plaintiff, and on its deposit in the bank by the defendant to his credit the title vested in the firm of bankers, and they became the debtors of the defendant. As this money was not held by the Piersons as a special deposit, they did not take it as bailees, but as owners; and the relation of debtor and creditor was established between them and the defendant; and the same was true as between the plaintiff and defendant, (Bank v. Hughes, 17 Wend. 94,) unless the defendant fraudulently converted the pension check by procuring the same to be deposited' to his credit, without the knowledge or consent of the plaintiff. If this money was properly in the Pierson Bank to the credit of the defendant, then, as we have seen, it became the general property of the Piersons, who became the general debtors of the defendant, who alone could draw it from them on his own checks, and he in like manner became the debtor of the plaintiff, and liable to him only in an action for money had and received, and could not be charged in trover for an unlawful conversion of the same. But it is not charged in the complaint that the defendant wrongfully converted this money by wrongfully depositing it to his credit with Pierson & Son, but that he wrongfully withdrew $1,000 of this money, and converted it to his own use.

The first question presented by the case is, was there any unlawful taking of the check deposited ,in the bank of Pierson & Son? Second, was there a conversion of said property by withdrawing this money from the bank by defendant? The whole tenure of the evidence seems to be that the plaintiff delivered the pension check to the defendant to be deposited by him, in his name, in the Pierson Bank, as he had already accounts with that bank; and, as the plaintiff could not draw checks for the same in his own name, the money was to be deposited in the name of the defendant, and the plaintiff was to look to him for money when he wanted the same. This appears directly from the testimony of the defendant, and his theory is strongly corroborated by the testimony of William J. Vrooman, Mead J. Vrooman, John F. Shafer, and Albert C. Judson, as well as the reasonable inference to be drawn from the fact that whenever plaintiff wanted money he called on the defendant for the same, instead of the bank, and never applied to the bank for any money. The case shows that he asked for and received, from time to time, different amounts of money from $100 to 50 cents, consisting of nearly 50 items, at different times, from, the time of the deposit of this money in the bank down to near the time of the commencement of this action. From these facts it seems to me to be conclusively established that the title to this money, deposited to the credit of the defendant, passed to him and from him to the bank, and- that the defendant’s subsequent withdrawal of the same, or of any part of it, was not a conversion, but was a lawful exercise of dominion over a debt due him from the bank, and that the payment made by "him to the plaintiff was in no sense a return of money which he had wrongfully converted, but was payment upon a debt which he owred the plaintiff. Conversion is a tortious act, by which the defendant deprives the plaintiff of his goods. Spencer v. Blackman, 9 Wend. 168. And the plaintiff in this action assumed the burden of proving the wrongful taking or detention of this $1,000, and the court cannot relieve him of that burden by presuming, in the absence of proof, or against the weight of the evidence, that the defendant has been guilty of a wrong. Presumption is always in-favor of honesty and fair dealing, and remains -available to the party in whose favor it arises until overcome by countervailing evidence. 1 Rice, Ev. 96; Railroad Co. v. Thompson, 107 Ind. 442, 8 N. E. Rep. 18, and 9 N. E. Rep. 357.

As "we have seen, the complaint does not allege the conversion of the pension check, but charges the .wrongful withdrawal and conversion of $1,000 from Pierson & Son, bankers, and for that amount plaintiff is allowed to recover. The evidence shows that, at the time of the commencement of this action, the defendant had standing to his credit in this bank $1,426,31, out of wdiich at that time he had drawn the sum of $1,253.05, leaving a balance in the bank of $182.26. If the conversion of this money consists in its withdrawal from the bank, as charged in the complaint, then the sum remaining in the bank was the money of the plaintiff, and the defendant could only be charged with the conversion of the $1,000, less the sum of $182.26, so that the recovery, upon the plaintiff’s theory, should have been only for the sum of $317.74, and interest from the time of drawing the same by the defendant. - The plaintiff cannot properly charge that the defendant drew out plaintiff’s money, and left his own in the bank, especially in the absence of proof upon that subject. Nor can he, for the.purpose of assuming that position, recover for the conversion of this check, when he claims in his complaint to recover only for money improperly drawn out of the bank, and not for the conversion of the check, or of the money, by depositing it in the bank in his own name. If this action had been prosecuted for the conversion of this money by the defendant by depositing it in the bank in his own name; and no charge had been made for the withdrawal of it by the defendant, the plaintiff would most signally have failed upon the proof, and hence the plaintiff makes no charge of the conversion of the .money, by the defendant by depositing the same in his own name; and, as the wrong charged consists in the "withdrawal of the money, the defendant could, in any event, only be charged with so much as the proof clearly established was withdrawn by him ; and, as he was permitted to recover for $182.26 in excess of the amount actually drawn by him, the judgment is erroneous, even if it can be held that the withdrawal of any of this money from the bank was a conversion of the amount só withdrawn. The referee in this case holds that the defendant, in effect, received this money in a fiduciary capacity, and that his depositing the same in his own name was a conversion of the same. No such allegation is contained in the complaint, and, as we have seen that the conversion charged was for the withdrawing the same from the bank, the recovery is based upon a state of facts and legal conclusions not set 'outin the complaint, and no motion has been made to conform the complaint to the facts proved or found by the referee. This cannot be done under the Code, any more than it could under the system of pleadings existing before the Code. In Southwick v. Bank, 84 N. Y. 429, Earl, J., in discussing the question, uses this language:

“Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them.” “If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather ensnare and mislead his adversary. ”

In Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. Rep. 698, the court say:

“It is a fundamental rule that the judgment shall be ‘secundum allegata et probata;’ and as was said in Day v. Town of Mew Lots, 107 M. Y. 148, 13 M. E. Rep. 915, any departure from that rule is certain to produce surprise, confusion, and injustice. ”

This fundamental and elementary rule was clearly departed from by the referee in this case. The defendant was not charged in the complaint, either in direct terms or by implication, with receiving this money in a fiduciary capacity, and yet the referee expressly refuses to find, on the request of the del'endant, that the same was not so received and held by the defendant, and thus, in effect, held that the defendant received and held this money in that capacity. In Hillis v. Bleckert, (Sup.) 6 N. Y. Supp. 405, which was an action for the conversion of money, Brady, J., says:

“There rs no allegation in the complaint that the money mentioned was received by the defendant in a-fiduciary capacity, and it is therefore deficient in an essential element. A statement of facts and circumstances which might justify the legal conclusion of money received in a fiduciary capacity does not comply with the statute, inasmuch as it requires such allegation to be made in the complaint, and declares that the plaintiff cannot recover unless he proves the same on the trial. ”

It is true that this was said when an order of arrest was applied for, but it at the same time illustrates - the rule of pleading in actions of tort for the conversion of money which comes to the possession of the defendant with the consent of the plaintiff. I am also of the opinion that the referee in this case erred in the admission of copies of the bank books in evidence. The stipulation, at most, only made the copy evidence if the books themselves were competent under the proof. This made it incumbent on th.e plaintiff first to prove in the regular way the authenticity and correctness of the books, before the transcript could be received in evidence. That was not done in this case. It can hardly be claimed that the bare production and proof of identity of the books of the bank would authorize them to be read in evidence against the defendant. In 2 Rice on Evidence (page 894) the learned author says:

“The books of a bank, like those of a merchant or shopkeeper, must be proved by supplementary proof, oath of some officer or agent of the bank; and before the books of a bank can be received, it must be proved or admitted that the entries were made by an authorized clerk or agent. ”

No such proof was given or offered in this case, and, the proper foundation for the introduction of the books not having been laid, the transcript was not, by the stipulation, made evidence. I am also of the opinion that the question put bjr the plaintiff’s counsel to the plaintiff, “Did you consent that Mr. Vrooman should draw this one thousand dollars from H. R. Pierson & Son’s Bank?” was not proper, and that the admission of the answer, under defendant’s objection, was error. Whether or not he consented, and what amounted to a consent, was the principal-question to be litigated in this case. That question was to be determined by the referee from the facts, circumstances, and conversations relating to the entire transaction; and, while it was competent for the-plaintiff, as a witness, to tell what was said, it was not, I think, competent for him to give a sweeping conclusion determining the whole theory of the defendant’s defense. He should have been confined to giving the conversations, and the referee should make his ■ deductions from the same. In Teerpenning v. Insurance Co., 43 N. Y. 281, Allen, J., says:

“As a rule, witness must state facts, and not draw conclusions or give opinions. It is the duty of the jury or the court to draw conclusions from the evidence, and form opinions from the facts proved. ”

I am therefore of the opinion that the judgment should be reversed, and the referefe discharged, and a new trial granted, costs to abide event.  