
    Orazio Portoghese, Appellant, v. Illinois Surety Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Receipt—'action against surety of firm of bankers — Code Civ. Pro., § 449-
    Where, on the trial of an action against the surety of a firm of bankers under a bond given pursuant to chapter 185 of the Laws of 1907 to secure the faithful holding and transmission by said firm of moneys received by it for transmission abroad, it was proved that plaintiff and his brother delivered to said bankers a certain amount of money to be sent to their father in Italy, and that they told the bankers to make the receipt for the money either in the name of plaintiff or his brother, as the money belonged to both, and it was further shown that the receipt for the money was made out to plaintiff in his name but that the money was never sent to Italy, a judgment for a dismissal of the complaint on the ground that the money given to the bankers was not the money of the plaintiff will be reversed and a new trial ordered.
    Held, also, that the receipt of the money given in the name of plaintiff was strong evidence that the contract was made in his name for the joint interests of himself and brother; that, while the facts disclosed by the record did not contradict or rebut the presumption arising from the giving and taking, of the receipt, it was the intention of the parties that the contract be made in the name of plaintiff and that the legal title to the money and obligation to transmit it should be in plaintiff for the benefit of himself and brother, and that plaintiff was entitled to sue and recover in his own name as a trustee of an express trust within section 449 of the Code of Civil Procedure without alleging the trust, as his representative capacity did not appear in the receipt.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint with costs at the close of the plaintiff’s case.
    
      John H. Coyne, for appellant.
    Nelson L. Keach, for respondent.
   Page, J.

This is an action to recover from the defendant as surety of the firm of Grottila & Gfenchi under a bond given pursuant to chapter 185 of the Laws of 1907 to secure the faithful holding and transmission by the said firm of moneys received by them for transmission abroad. At the trial it was proved that the brother of the plaintiff accompanied the plaintiff to the offices of Grottila & Gfenchi, bankers, and that together they delivered to the bankers 5,000' lire in Italian money, equivalent to about $970 in United States money, to be transmitted to their father in Italy and that they told the bankers to make the receipt for the money either in the name of the plaintiff or his brother as the money belonged to both. It was further proved that the receipt for the money was made out to the plaintiff and in his name and that the money was never transmitted to the plaintiff’s father in Italy. At the close of the plaintiff’s case a motion was made to dismiss the complaint on the ground that it appeared from the testimony that the money given to the bankers was not the money of the plaintiff but was the money of another person. The motion was granted and the complaint dismissed.

In reviewing this judgment of dismissal the testimony and every conflict therein must be construed and resolved in the plaintiff’s favor. It is true that in one place the plaintiff’s brother in testifying said: “ I delivered about $987 to these bankers on that occasion I earned that money from my own work, ’ ’ but later he corrected this and said: ‘1 This money belonged to us both * * * This money was in the possession of my brother and he gave it to Gfottila to send to my father so that he could purchase property over in Ventimiglia for our account for both of us. It was both my money and his money.” Following the rule of construction above stated, for all purposes of this appeal the later testimony must prevail.

The evidence shows that the receipt for the money was given by the banker in the name of the plaintiff. This is strong evidence that the contract was made in the plaintiff’s name for the joint interest of both him and his brother. The learned trial justice has held that the receipt was not a contract and that parol evidence could be introduced to show who the real parties to the contract were. While this is undoubtedly a sound proposition of law, the facts disclosed by the record in no way contradict or rebut the presumption which arises from the giving and taking of the receipt that it was the intention of the parties that the contract be made in the name of this plaintiff and that legal title to the money and obligation to transmit it should be in him for the benefit of both. This being the case, the plaintiff was entitled to sue and recover upon it in his own name as a trustee of an express trust within the Code of Civil Procedure, section 449 (Parker v. Paine, 37 Misc. Rep. 768; Considerant v. Brisbane, 22 N. Y. 389), and he could sue and recover without alleging the trust, as his representative capacity in no way appeared in the receipt. Weed v. Hamburg-Bremen Fire Ins. Co., 133 N. Y. 394.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabuby and Bijtjb, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  