Jennie Clarkson Home for Children v. Missouri, Kansas & Texas Railway Co.

The questions presented upon this appeal are the same as those determined in the case of Jennie Clarkson Home for Children v. Chesapeake & Ohio Railway Co. (decided herewith), 87 N. Y. Supp. 348; and for the reasons stated in that case the judgment appealed from should be modified, by requiring the Missouri, Kansas & Texas Railway Company to restore to the plaintiff the bonds which it has illegally transferred, or, in default of the delivery of such bonds to the plaintiff, the plaintiff should have judgment for the value of the bonds as found by the court, with interest, and that the defendant the Missouri, Kansas & Texas Railway Company is entitled to judgment against the defendant Gibson for the amount that it is required to pay to the plaintiff as the' value of the bonds, with interest thereon, and, as modified, the judgment should be affirmed, with costs to the plaintiff.

VAN BRUNT, P. J., concurs in result.

I concur in the opinion of Mr. Justice INGRAHAM so far as it disposes of the question arising between the railway company and the plaintiff, and also between the railway company and Gibson. I also think that the plaintiff is entitled to the judgment which it has obtained against Gibson. The form which the trial of the action assumed conferred authority upon the court to award any relief which the facts warranted; and, as it appeared that the .defendant Gibson could be made liable for a conversion of the proceeds of the bonds, it.was proper for the court to award the judgment against him which it did. I am, therefore, for the affirmance of the judgment in its entirety. The judgment should be affirmed, with costs.

PATTERSON and LAUGHLIN, JJ. We concur in the opinion of Mr. Justice INGRAHAM, except so far as the liability of the defendant Gibson to the plaintiff is concerned, and with respect to that we concur in the opinion oí Mr. Justice HATCH.