Summary
In J. W. Matthews Co. v. Employers' Liability Assurance Corp., Ltd., 127 App. Div. 195 (111 N.Y. Supp. 76), relied on by plaintiff, it is said that the claim which will constitute a defense must be of ownership of the money and not by way of set-off, but this by virtue of express statute.
Summary of this case from Life Ins. Co. v. Fidelity Guar. Co.Opinion
June 5, 1908.
John A. Dutton, for the appellant.
Henry Kohl [ Benjamin McClung with him on the brief], for the respondent.
The findings of fact sufficed to support the legal conclusion of larceny under the law of this state. Section 528 of our Penal Code makes it larceny for an agent or servant to appropriate to his own use any money or property which he has in his possession as such agent or servant, "with the intent to deprive or defraud the true owner of his property or of the use and benefit thereof". Section 548 provides that it is a sufficient defence that the "property" was "appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable". But the referee found on sufficient evidence that the appropriation in this case was in bad faith. Moreover, such appropriation did not come under this latter provision. The money was not appropriated under a claim of title, but under a claim of indebtedness by the plaintiff to the agent; and it is provided by the last sentence of this same section, that the said section "shall not excuse the retention of the property of another to offset or pay demands held against him".
The claim that the question of larceny should be determined under the laws of Connecticut, where the money was collected and misappropriated, is not tenable, the contract of insurance having been made and delivered in this state to the plaintiff, a resident thereof. The contract was not a roving one but intended the laws of this state ( Grand v. Livingston, 4 App. Div. 589; 158 N.Y. 688; Fidelity Casualty Co. v. Wells, 49 App. Div. 171; Stumpf v. Hallahan, 101 id. 383; Monroe v. Douglass, 5 N.Y. 447; Union Nat. Bank v. Chapman, 169 id. 538).
The plaintiff complied with the condition precedent of furnishing particulars and proofs of loss.
The judgment should be affirmed.
WOODWARD, HOOKER and MILLER, JJ., concurred; RICH, J., not voting.
Judgment affirmed, with costs.