Public-domain · open source
OpenJurist

5 Silv. Sup. 224

Bartlett v. Sutorious

New York Supreme Court

Decided January 10, 1890

New York Supreme Court · decided 1890-01-10

The order of arrest was granted November 8, 1888, the ground stated therein being conversion by defendant of money “ received by him as agent of said plaintiff in a fiduciary capacity.” The complaint alleged that plaintiff shipped certain goods to defendant, then his agent at New York, to sell for cash or on thirty days’ credit; that defendant received and sold said goods, except a portion which was returned, and collected the proceeds of said sales; that he has neglected…

Decided 1890-01-10

Per Curiam.

¶1The order appealed from should he reversed and the order of arrest vacated, without costs.

¶2Van Brunt, P. J. and Bartlett, J., concur.

¶3Note ox “ Abbest fob Act ix Fiduciaby Capacity.”

¶4The complaint must allege the receipt of money in a fiduciary capacity, in order to an arrest on that ground. Hillis v. Bleckert, 53 Hun, 490 ; Bartlett v. Sutorious, Id. 637.

¶5To sustain an order of arrest for money received in a fiduciary capacity, the complaint must allege such facts. Harland v. Howard, 57 Hun, 587.

¶6An order of arrest in an action for conversion, where the complaint failed to allege or show that defendant acted in a fiduciary capacity, is properly vacated. Bartlett v. Sutorious, 55 Hun, 60S.

¶7An agent of an insurance company acts in a fiduciary capacity under chap. 688 of 1873 and is liable to arrest in an action by the company to recover premiums paid to him. Albany Ins. Co. v. McAllister, 57 Hun, 594.

¶8See note in 2 Sil. Sup. Ct. 25.

/5/silvsup/224 · .json · Public domain