New York Supreme Court, 1859

Bull v. Melliss

New York Supreme Court · Decided May 15, 1859 · Ingraham, Pratt, Roosevelt

9 Abb. Pr. 58

Counsel

W. E. Curtís, for the appellant, cited White a. Platt, 5 Den., 274; Howard a. Homer, 1 Code R., N. S., 406; 6 How. Pr. R., 88; Stoll a. King, 8 How. Pr. R., 300; Burnham a. Corey, 4 Sandf., 707; Hawkins a. Appleby, 2 Ib., 428; Story on Partn., § 108; Collyer on Partn., § 240; Strong a. Stevens, 4 Duer, 668; Donohue a. Henry, 4 E. D. Smith's C. P. R., 162., Shea Richardson and J. M. Van Cott, for the respondents.

Dissenting Opinion

Pratt, J. (dissenting).

It appears to me that there is no pretence in this case that the defendants were to pay the identical money deposited; and that they were at liberty to use the money in any way they pleased, entering into an ordinary contract that their firm in England should pay the amount. Brown Brothers, and other houses, give letters of credit in such cases every day, and certainly could not be held to arrest for fraud in case of failure.

Order appealed from reversed without costs.

Opinion of the Court

By the Court.—Roosevelt, P. J.

The defendants need not have taken charge of the funds, but having done so, I think it was a breach of trust instanter to remit a bill on themselves at sixty days—in other words, a promissory note, taking a loan of the money without authority.

Concurring Opinion

Ingraham, J.—concurred.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.