Employers' Liability Assurance Corporation, Ltd., of London v. Hudson River Trust Co.

Motion to amend decision granted in modified form. The decision, handed down by this court on March 3, 1937 [ante, p. 159], is hereby amended to read as follows: “ Judgment reversed as to plaintiff surety on the law and facts with costs and judgment granted to it for the amount of its claim with interest and costs; judgment, in so far as it dismisses the claim of the plaintiff receiver, affirmed, with costs to the defendant against the receiver. The court reverses findings of fact Nos. 14 and 15 contained in the decision, and disapproves the first and third conclusions of law therein. The court modifies finding of fact No. IS to read as follows: ‘ The Germantown National Bank had constructive notice of each act of misappropriation and conversion committed by DeWitt in connection with each transaction mentioned in findings of fact Nos. 10 and 11.’ The court modifies finding of fact No. 19 to read as follows: ‘ The Germantown National Bank not with actual knowledge but with constructive notice, aided in each act of misappropriation and conversion committed by DeWitt in, connection with each transaction mentioned in findings of fact Nos. 10 and 11.’ The court finds that when each of the checks in question was accepted by defendant for deposit to DeWitt’s personal account, defendant was upon notice that county moneys were thereby being diverted to the personal account of DeWitt and to his personal use. The court modifies and corrects the last sentence of finding No. 16 of plaintiff’s request to find, so that said sentence shall read: ‘ At the time of each such withdrawal the account consisted solely of moneys referred to in finding 15 and the credits referred to in finding 14.’ Opinion by Rhodes, J.; Hill, P. J., and Heffeman, J., concur; Crapser, J., dissents, and votes to affirm; McNamee, J., not voting.” Present — Hill, P. J., Rhodes, Crapser and Heffernan, JJ.; McNamee, J., not voting.