Opinion
December 30, 1910.
Leon N. Futter, for the appellant.
James A. Sheehan, for the respondent.
The defendant by his demurrer admits that one Daniel F. Doherty, special guardian of plaintiff's assignors, paid his personal debt, amounting to $169.95, not connected in any manner with his guardianship or the estate of the infants he represented, to the defendant with the money coming into his hands as such guardian, the defendant knowing at the time he received such payment that it was made from guardianship funds, and that such guardian never accounted to the infants, or paid over the money he had so wrongfully and without authority paid to the defendant. These facts entitled the plaintiff, as assignee of the minor wards, to maintain an action at law against the defendant for money had and received, which is the cause of action alleged in the amended complaint. ( Roberts v. Ely, 113 N.Y. 128; Town of Bleecker v. Balje, 138 App. Div. 706; Weston v. Brown, 158 N.Y. 360, 368.) The check with which Doherty paid his personal debt to defendant is signed by him as "Special Guardian," which brings the case within the rule declared in First Nat. Bank v. Nat. Broadway Bank ( 156 N.Y. 459, 467, 468); Rochester Charlotte Turnpike Road Co. v. Paviour (164 id. 281, 286, 287); Ward v. City Trust Co. (192 id. 61, 69), and Gerard v. McCormick (130 id. 261). It is immaterial that Doherty gave a bond for the faithful performance of his duties ( Fellows v. Longyor, 91 N.Y. 324, 331), or whether the money in the possession of the defendant is impressed with a trust. ( Merino v. Munoz, 99 App. Div. 201, 203.) The action being one for money had and received is one of which the Municipal Court had jurisdiction. ( Dechen v. Dechen, 59 App. Div. 166; Pache v. Oppenheim, 93 id. 221; Devery v. Winton Motor Carriage Co., 49 Misc. Rep. 626; Cohen v. Small, 120 App. Div. 211.)
The judgment must, therefore, be reversed, with costs, with the right to defendant upon the payment of such costs within twenty days to answer upon the merits.
HIRSCHBERG, P.J., WOODWARD and CARR, JJ., concurred; BURR, J., not voting.
Judgment of the Municipal Court reversed, with costs, with leave to defendant upon payment of such costs within twenty days to answer upon the merits.