McKay v. McKay

An examination of the evidence presented by the record leads us to concur in the decision of the trial court that the defendants have not in their possession any bonds belonging to the plaintiff, nor the proceeds of any such bonds, for which they have not accounted to the plaintiff. The complaint alleges the deposit by the plaintiff with the defendants, in September, 1869, of certain bonds, of the face value of $45,000, and their sale by the defendants during the months of October and December following, for a sum exceeding $55,000. During the years 1869, 1870, and 1871, the defendants purchased and sold stock for the account of the plaintiff, and rendered to him an account of such transactions on the 27th of October, 1871, by which there appeared to be due to defendants the sum of $15,800.74, which sum the plaintiff paid by Ms check, at the same time receiving a transfer of the stocks then held by the defendants for his account. Afterwards, the plaintiff complained of certain charges in the account for interest and commissions, which led to a further settlement, by which the defendants agreed to, and did, pay to the plaintiff the sum of $1,617, for which he gave a receipt reading as follows:

“New York, Sept. 12, 1872.

“Received of Vermilye & Co. their check to my order for sixteen hundred and seventeen dollars (81,617), in full of all claim against said Vermilye & Co. E. D. 0. McKay.

“Witness:

“Geo. G. Lyman.

“Donald McKay.”

From the time of the first settlement, in 1871, to the year 1891, no claim was made against the defendants on account of these bonds. In the meantime, the head of defendants’ firm died, and their books covering this period were destroyed. The facts to which we have referred, together with the presumption of payment, raised by the lapse of 20 years between the date of the first settlement and the demand for a return of the bonds (Bean v. Tonnele, 94 N. Y. 381), justify the finding of the court.

The discussion of the facts at special term makes it unnecessary to further refer to them on this review.

The judgment should be affirmed, with costs. All concur.