majority">Van Brunt, J.

[After stating the facts as above.]—If' the understanding of the parties had been that the defendant should collect the plaintiffs’ bills separate from his own and turn over the identical money collected, it might be that the discharge in bankruptcy would be no defense. But the evidence in these cases shows that the defendant was to collect the plaintiffs’ bills with his own,—if paid in a check, by one check, if paid in money, in one amount,—no particular money being set aside for any particular bill, and was expected to mingle the money thus collected with his own, and to account and pay over the amounts which he collected every month.

There was no breach of trust in mingling the money collected with his own. Such commingling gave no cause of action against the defendant, and- a cause of action only arose upon a failure to account for and pay over the moneys collected upon a demand duly made for that purpose.

The case of Hennequin v. Clews in the court of appeals (77 N. Y. 427), and the case of Rowe v. Guilleaume (18 Hun, 556), and the cases therein cited, dispose of this question. In numerous cases cited in Hennequin v. Clews, it has been held that in a case where goods have been sent to an agent to sell and remit the proceeds, if the agent fails to remit, and an action is brought against him, a discharge in bankruptcy is a good defense, and such a case is in all respects similar to the one at bar.

The case of Rowe v. Guilleaumewas just as strong as the one at bar, and upon the authorities above cited "it was held that the discharge was a bar.

The construction set upon the term “ fiduciary capacity ” in these cases expressly excludes agencies as such. If the party is in such a position that he can commingle the moneys re*66ceived with his own without by that act alone making himself liable to an action, then he is entitled to the benefit of the bankrupt act.

I am of the opinion, therefore, that the discharge in bankruptcy was a good defense, and the judgment should be reversed.

Charles P. Daly, Ch. J., concurred.

Judgments reversed.

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