
    (70 Hun, 211.)
    KANE v. BELKNAP.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Money Had and Received—Action to Recover—Sufficiency of Evidence.
    In an action by an executrix to recover money received by defendant from deceased, the question was whether defendant had invested $5,000, as it was his duty to do, under a power of attorney, or had invested it at all. It appeared that defendant and deceased were accustomed to keeping their bank accounts good by borrowing of each other, and that on a certain date $5,000 was loaned by deceased to defendant, and credited to the latter’s bank account. The bookkeeper for both defendant and deceased at the time testified for plaintiff that, on a certain subsequent date, defendant drew a check, which was never used, against deceased's bank account, for $5,000, to be invested in a contract with a certain banking firm, which afterwards failed, and that, instead of using such check, defendant paid to deceased his previous loan of $5,000 by invest-mg it for deceased in such contract. After the failure of the banking firm, deceased, in a' letter in evidence, approved of the investment. Held, that the court properly directed a verdict for defendant.
    Appeal from circuit court, New York county.
    Action by Cornelia E. Kane, as executrix of the last will and testament of William H. Kane, deceased, against Robert Lenox Belknap, to recover certain money received by defendant from plaintiff’s testator, and which defendant claimed he had invested under a power of attorney from deceased. From a judgment entered on the verdict of a jury, directed by the court, in favor of defendant, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT, J.
    Platt & Bowers, (John M. Bowers, of counsel,) for appellant.
    Robert W. Weeks, for respondent.
   FOLLETT, J.

This action was brought to recover $14,000 on account of the following sums of money received by the defendant from the plaintiff’s testator at the following dates: December 20r 1883, $5,000; December 27, 1883, $10,000; May 1, 1884, $5,000. It it admitted that $0,000 of this sum was subsequently paid. The complaint contains two causes of action: (1) Charging the defendant with negligence in investing these sums in Grant & Ward contracts; (2) with not having invested said sums as was his duty to do. On the 1st day of October, 1873, the plaintiff’s testator executed and delivered to the defendant a power of attorney, which isr in its terms, broad enough to authorize the investment by the defendant of the sums mentioned in the way in which he claims to have invested them. This power remained in force until the death of William H. Kane, which occurred in December, 1886. The defendant, in his answer, admits that he received the foregoing sums of money, belonging to the testator, at the dates mentioned, for investment, and alleges that he invested the same pursuant to the directions of said Kane, and pursuant to the general authority and discretion given to him, and has since fully accounted therefor, and paid over the entire proceeds thereof. The plaintiff admits, on this appeal, that as to the first and second items it was right to direct a verdict for the defendant, but insists that it was error to refuse to submit to the jury the question as to the plaintiff’s right to recover for the $5,000 received May 1, 1884. There was an entire failure to sustain the first cause of action, for the evidence-furnished by the testator’s letters and the testimony of Stevenson established, beyond doubt, that the testator authorized the defendant to invest in those so-called contracts. May 9, 1884, the defendant wrote Kane, stating that he had invested these sums in Grant & Ward contracts, and informed him of the failure of that firm. On the 26th of the same month, Kane replied, saying, among other things relating to the same subject, “I do not blame you at all, as I gave you my consent to your loaning it to them before I left, last fall.” Stevenson, a witness called by the plaintiff, testified that he heard Kane direct the defendant to invest $20,000 of his money in those contracts. In addition to this the statements rendered by the defendant to the plaintiff from time to time showed that such investments had been made, and the sums allowed as profits had been credited to Kane.

The sole .question left in. the. .case is whether the defendant, on the 1st day of May, 1884, actually invested $5,000 with Grant & Ward, for Kane. That he had authority to make such investment is established beyond question; and it is also conclusively shown, by the correspondence between them subsequent to the failure of Grant & Ward, that the defendant reported that he had invested that sum with them, and that Kane acknowledged his right to make the investment. Did the defendant make a misstatement in regard to-having made the investment? If he did, he is liable. Was there sufficient evidence to make this a question of fact for the jury? It is claimed that the investment was effected through the following-transactions: March 13, 1884, the defendant drew a check on the bank account of Kane for $5,000, which was deposited to the credit of the defendant’s bank account. This was, in effect, a call loan made by Kane to defendant through the agency of the latter. It may be that the terms of the power of attorney are not broad enough to authorize the defendant, as agent, to borrow for himself the money of his principal. However, this point is not raised, and it appears-from the evidence that defendant had previously borrowed money of Kane in the same manner, and had made loans to Kane by checks drawn upon his account, which were deposited to the credit of Kane’s bank account. This seems to have been a mode adopted of keeping their bank accounts good. The defendant insists that he paid this loan May 1, 1884, by investing $5,000 in a Grant & Ward contract, and by depositing to the credit of Kane’s bank account a check for $33.33, interest on the loan at the rate of 5 per cent. Kane’s bank account is in evidence, in which there is this entry l “May 1, 1884, call loan of March 13th pd., and int., 5$, $33.33.” An account showing this item was rendered by the defendant to Kane up to July 10, 1884, who acknowledged its receipt by a letter dated August 1st, in which he says that the account is correct. In the-same account, Kane is charged with an investment of $5,000 on that date, which is the item claimed to have been invested in a Grant & Ward contract. The assertion of the defendant is that instead of drawing a check against his own account, and having it credited to Kane’s bank account, he paid the loan by investing the sum as before stated. The plaintiff, to establish her cause of action, called Mr. Stevenson, defendant’s bookkeeper, who also kept the account of Kane while he was absent in Europe. He testified positively that the defendant, on the 1st of May, paid the loan, by investing-$5,000 in a Grant & Ward contract, and that he personally made that investment. The plaintiff seeks to raise a doubt as to the truthfulness of this testimony by producing Kane’s check book,, which, during the early part of 1884, was kept by Stevenson. In this book there is a check and a stub, of which the following are-copies:

This check has never been used, and the signature has been canceled. Stevenson, who drew the check and made the investment as thé agent of the defendant, testified that the check was not used, so as to avoid two unnecessary transactions and entries, to wit, the drawing of a check by the defendant on his bank account in payment of the loan from Kane, and depositing it to his credit, and then the use of the check above set forth in payment for an interest in a Grant & Ward contract purchased by the defendant for Kane on that date. This was positively testified to, and we are unable to see any suspicious circumstances connected with the transaction, making it necessary to submit to the jury the question of the truthfulness of the undisputed testimony of Stevenson. More than this, after Kane’s return from Europe this check book was returned to and used by him, and the transaction was never repudiated nor questioned by him. If, as the plaintiff asserts, the defendant did not make the investment, and his claim to have done so was a fraudulent afterthought, it is difficult to see why no attempt was made to conceal this so-called evidence of guilt, as there was ample opportunity for doing so. We think the check and stub, in connection with the circumstances, sustain, rather than discredit, the testimony of Stevenson, and that a verdict was rightly directed for the defendant, and that the judgment should be affirmed, with costs.  