Spence v. Baldwin

Decided July 15, 1880

New York Supreme Court · decided 1880-07-15

This was an action brought by plaintiff to recover as damages a sum of money fraudulently embezzled and converted by defendant while acting in a fiduciary capacity as agent for plaintiff. Defendant was arrested on the complaint and an affidavit showing defendant thus collected the money and appropriated it to his own use.

Decided 1880-07-15

Westbrook, J. —

¶1I have no doubt of the soundness of the law stated by defendant’s counsel, but I think it has no appliication to this case.

¶2The notes were accepted by reason of false statements made *377by defendant, and plaintiff could repudiate the settlement for fraud. The notes must be surrendered, and such surrender must be a condition of upholding the order of arrest. The notes must be filed with the clerk to await the final order of the court in this action. If this is complied with the motion is denied.

¶3Ho costs on motion as no tender of notes was made before suit.