Banner v. D'Auby , 69 N.Y.S. 891 ( 1901 )

Bischoff, P. J.

The action is to recover money in the hands of the defendant, received by him as attorney-at-law when engaged in collecting certain claims for the plaintiff’s assignor, and which money he had failed to pay over after demand. Apparently the complaint is framed in assumpsit and does not proceed for tort, but, whether the action is to be treated as for conversion or for money had and received, proof of a demand was an essential of the plaintiff’s case, and the making of the demand was placed in issue by the answer. Admittedly the original receipt of the money by the defendant was lawful; therefore, without a demand, there could be no conversion, and a demand must be made before an action may be maintained to recover moneys of the client alleged to be in the hands of the attorney. Grinnell v. Sherman, 38 N. Y. St. Repr. 587-580. In the absence of the slightest proof that any demand was made, the plaintiff was properly non-suited, and the judgment must be affirmed, with costs.

Leveetritt and Clarke, JJ., concur.

Judgment affirmed, with costs.