Curtis v. . Albee , 167 N.Y. 360 ( 1901 )

I dissent. Welker was the attorney of the plaintiff to collect the account which he held against the assignee of Hoffman Company, and he had collected thereon for the plaintiff $745.26, which yet remained in his hands at the time the plaintiff sold the account to the defendant, but the plaintiff did not know it. In selling the account the plaintiff did not sell the money in Welker's hands. It was the plaintiff's money. Welker had received it in a fiduciary capacity and, therefore, whether he paid the identical or substituted money to the defendant is immaterial. It was his duty to pay one or the other kind of money to the plaintiff, and when he paid $600 of it to the defendant, the defendant knew the facts. He demanded of Welker the money which Welker had collected upon the account of plaintiff's assignor against the assignee of Hoffman Company, and Welker paid him that money, and whether in identical or substituted currency, he got what he asked for, and cannot be heard to quibble over the identity of the particular cash. The plaintiff could trace and follow the money, whichever kind it was, into the defendant's hands, and, having found it there, could reclaim it. (Van Alen v. American National Bank, 52 N.Y. 1.) The plaintiff need not ratify the payment to the defendant; he sought and found his money where his attorney had misplaced it. The judgment in his favor against the defendant for the recovery of the money is right and should be affirmed. What is said in the prayer for judgment in the complaint, and in the judgment itself, about reforming the contract of assignment, is an immaterial addition to the true cause of action stated, for which a money recovery has been had. So much of the judgment as directs a reformation of the contract is harmless.

O'BRIEN, BARTLETT and MARTIN, JJ., concur with VANN, J.; PARKER, Ch. J., concurs with LANDON, J.; CULLEN, J., takes no part.

Judgment reversed, etc.