12 Abb. Pr. 436
Decided September 15, 1861
New York Supreme Court · decided 1861-09-15
execution against the person. This action was brought to recover a balance alleged to be due from the defendant for moneys collected by him while in plaintiff’s employment. The defence was, that the demand, if any existed, which was denied, had been settled by the defendant’s giving a bond and mortgage upon real property in Brooklyn. The allegations in the complaint amounted to an averment that the action was brought to recover for money received in a fiduciary capacity.
Decided 1861-09-15
¶1—We think the order should be affirmed. The case in 14 How. Hr., 408, was one in which the checks were received in satisfaction of the debt.
¶2The character of the indebtedness was not changed by taking security, which was afterwards accepted in part payment. The residue of the claim was still of a fiduciary character, and the defendant liable to arrest.
¶3Order affirmed.
¶4 Present, Clerke, P. J. Ingraham and Leonard, JJ.