tenant on motion to dismiss, and against the landlord," and the notice of appeal being from a "judgment in favor of the above-named tenant," etc., did not show a final order, as provided by said section 2249, Code Civ. Proc. Appeal from Municipal Court, Borough of Manhattan, Eleventh Dis trict. Action by Patrick F. Dickinson against John J. Brown. Judgment for defendant, and plaintiff appeals. Appeal dismissed. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. TRUAX, J. This is a summary proceeding, instituted to obtain possession of certain premises occupied by the defendant. Issue was joined by verified petition and verified answer, and at the close of the case the tenant's attorney moved for a dismissal of the proceedings, which was granted. Upon the petition was indorsed: "Motion to dismiss petition granted. Judgment for tenant." The return also recites that: "The proceeding here closed, and the justice thereupon, to wit, on the 14th day of March, 1906, rendered judgment in favor of the tenant on motion to dismiss, and against the landlord." The notice of appeal is from a "judgment in favor of the above-named tenant," etc. Jurisdiction is conferred upon Municipal Courts to entertain summary proceedings by subdivision 12 of section 1 of the Municipal Court Act (Laws 1902, p. 1488, c. 580), which provides that such proceedings shall be instituted under "title 2 of chapter 17 of the Code of Civil Procedure," which begins with section 2231 and ends with section. 2265, inclusive. Section 2249 of that chapter provides for the final determination of a summary proceeding by a final order, and section 2260 provides for an appeal from such an order. The record in this case contains no such order, nor does it appear therein that any such order was ever made. The appeal was, therefore, permaturely taken, and must be dismissed. See Lewis v. Hoffman, 5 Civ. Proc. R. 141; Wulff v. Cilento, 28 Misc. Rep. 551, 59 N. Y. Supp. 525. Appeal dismissed, with costs, and case remitted to the lower court for such further action as counsel may advise. All concur. (50 Misc. Rep. 319) LEFKOWITZ v. REICH. (Supreme Court, Appellate Term. April 24, 1906.) 1. MONEY RECEIVED-PAYMENTS TO AGENT-RECOVERY. Plaintiff's assignors, being desirous of fitting up a saloon and dance hall, and being without sufficient funds, applied through defendant to a brewing company for assistance. Defendant was the salesman and collector for the company, and he procured the latter to agree to advance the greater part of the cost of fitting up the place desired, under an arrangement by which plaintiff's assignors agreed to pay $1,500 and the brewing company the balance. Plaintiff's assignors paid $1,500 to the brewing company, and thereafter paid $500 more to defendant on his representation that the brewing company required that amount addi. tional, which sum defendant never paid to the latter. Defendant sub and 132 New York State Reporter sequently stated to the brewing company that plaintiff's assignors desired the return of the $1,500 to use until it became necessary to apply it to the work for which it was designed, whereupon it was paid to defendant, and he deposited the entire $2,000 to his own bank account and never applied any part thereof to the purpose indicated. Held, that neither defendant nor the brewing company ever acquired any title to the money, except to apply it to the purpose intended, and that plaintiff's assignors could therefore ratify defendant's act in receiving the money and recover the same in an action for money had and received. 2. WITNESSES-CROSS-EXAMINATION. Where, in an action for money received, plaintiff's assignors claimed that defendant had acknowledged his indebtedness within the period limited for the bringing of an action to recover the debt, and had paid $50 thereon, which defendant denied, claiming that the debt was barred by limitations, and in various pleadings and affidavits filed plaintiff had alleged that the amount due was the total amount of the original claim, it was error for the court to refuse to permit defendant to crossexamine plaintiff's assignors with reference to why they had uniformly omitted to previously assert such partial payment: Appeal from City Court of New York, Trial Term. Action by Aaron Lefkowitz against Bernard Reich. From a City Court judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Leonard Bronner (Benjamin N. Cardozo, of counsel), for appellant. Wales F. Severance (Max D. Steuer, of counsel), for respondent. SCOTT, P. J. The plaintiff sues as assignee of the firm of Schneider Bros. upon a state of facts which must be deemed to have been established by the verdict as follows: In 1897 that firm were desirous of fitting up and running a beer saloon and dance hall. They had not sufficient money themselves, and through the mediation of defendant made an arrangement with the Malcolm Brewing Company, for whom defendant was salesman and collector, whereby the company agreed to advance the greater part of the cost of fitting the place up. Under this arrangement it was agreed that Schneider Bros. should pay in cash $1,500, and that the brewing company should pay the balance of the expense, taking a chattel mortgage to secure themselves. Schneider Bros. paid the $1,500 to the brewing company, and subsequently, paid a further sum of $500 to defendant, on his representation that the brewing company required that that additional amount should be put up. This sum, however, defendant never paid to the company. The fitting up took longer than had been anticipated, and defendant stated to the brewing company that Schneider Bros. desired the return of the $1,500, as they could use it until it should become necessary to apply it to the payment for the fitting up of the place. Defendant admits the receipt of the $1,500 from the brewing company and of the $500 from Schneider Bros., and it appears that both amounts were deposited in his own bank account. He asserts, however, that it was all expended by him in fitting up the place. On this issue the jury found against him, and we must assume from their verdict that defendant appropriated the money to his own purposes. Under these circumstances may the plaintiff maintain an action as for money had and received? We think that he may. It is undoubted In a ly true that it had been held that in the case of a mere agency for the transmission of money the party for whom the money was designed cannot maintain an action against the agent as for money had and received to his use, and the reason for the rule has been said to be that the law will not imply a promise to one person upon a consideration moving entirely from another and where there is no privity of contract between the parties. Bigelow v. Davis, 16 Barb. 561. As we consider it, however, the plaintiff's right to recover rests upon the broader principle that money in the hands of one person to which another is equitably entitled may be recovered in a common-law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled thereto. Roberts v. Ely, 113 N. Y. 129, 20 N. E. 606; Mason v. Prendergast, 120 N. Y. 537, 24 N. E. 806. In the case at bar Schneider Bros. had never lost their beneficial ownership and interest in the money. They had paid the $1,500 and the $500, as they supposed, to the brewing company, not as absolute payments as for a debt due, but as advances to be expended by the brewing company for the benefit of Schneider Bros. The brewing company obtained no title to it, except as a deposit to be applied to fitting up the saloon. very important sense, therefore, Schneider Bros. remained the owners of the money, which could not, without their consent, be diverted from the purpose to which they had appropriated it. With all the facts. defendant was fully cognizant, and he must therefore be deemed to have known that both the $1,500 and the $500 remained the property of Schneider Bros. until used for the special purpose to which they had appropriated it. He knew, therefore, when it came into his hands, that neither he nor the brewing company had any right to use the money otherwise than in fitting up the saloon, or any right whatever to retain it, if it was not so used. The jury have found that it was not used for the purpose for which Schneider Bros. paid it. It follows that in equity and in good conscience it was defendant's duty to repay it, not to the brewing company, who had no claim to it if it was not used in fitting up the saloon, but to Schneider Bros., whose money it was. It is no answer to say that Schneider Bros. might have sued the brewing company on the theory that defendant acted for them and as their agent. He also undertook or assumed to act as Schneider Bros.' agent, and although they were unaware of the fact at the time and for a long time thereafter, it was competent for them, when they ascertained the facts, to ratify defendant's assumption of agency and sue upon that theory. Dechen v. Dechen, 59 App. Div. 166, 68 N. Y. Supp. 1043. If, therefore, there were no question in the case, except as to the right of plaintiff to sue upon the state of facts above detailed, we should find no difficulty in affirming the judgment. There is, however, another and a serious question to consider. The transaction by which defendant, as it is said, became possessed of Schneider Bros.' money, took place in 1897, and plaintiff's claim would therefore have been barred by the statute of limitations, unless some fact appeared to take the case out of the statute, which was duly pleaded 's a defense to the action. To avoid the effect of the statute plaintiff's :ssignors testified that in 1904, some months before the commencement and 132 New York State Reporter of this action, the defendant, who up to that time had vigorously denied liability for the money, came to the Schneiders and voluntarily confessed that he owed the money, and paid $50 in bills on account, promising to pay the balance later. This payment is relied upon to take the case out of the statute. The defendant denies this story in toto, and, as evidence of its improbability, points to the fact that the assignment to plaintiff, although made after the alleged payment, was for a claim of $2,000 instead of $1,950; that in the complaint $2,000 is claimed, and it is asserted that no part of it has been paid; that in affidavits made for various purposes during the litigation the assertion is uniformly made in form or in substance that the whole sum of $2,000 is due, and no hint or suggestion is made as to any payment having been received on account thereof. It may be that these circumstances, apparently contradictory of the story that defendant had paid $50 on account, were susceptible of satisfactory explanation; but they certainly presented a situation which entitled the defendant to cross-examine the plaintiff's assignors with considerable particularity. An attempt was made to so cross-examine them; but the court, upon the objection of immateriality, excluded many pertinent and relevant questions as to why the witnesses had uniformly omitted to mention a fact so material and important to the maintenance of the action, and, after refusing to permit the plaintiff's assignors to be cross-examined upon the subject, the court, against defendant's objection, permitted the plaintiff's attorney to make the explanation which it had been forbidden to ask of the witnesses themselves. It is impossible to say that these rulings may not have affected the conclusion of the jury upon the question whether or not the $50 had been paid, and thus practically defeated a defense which defendant was entitled to interpose. For this error, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. (50 Misc. Rep. 645) JONES v. RICHARDS et al. (Supreme Court, Appellate Term. April 24, 1906.) 1. PRINCIPAL AND AGENT-AUTHORITY OF AGENT-EXCHANGE OF PROPERTY. An agent for the sale of property has no implied authority to exchange the same for other property. [Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 84.] 2. SAME-NOTICE OF AUTHORITY-EVIDENCE. Plaintiff delivered horses to an agent for purposes of sale, and while boarded at a livery stable they were charged to plaintiff, of which fact one to whom the agent traded them for other horses had notice, as well as notice of the agency. He made no inquiries as to whether the agent had authority to exchange the property or not. Held to show knowledge on his part that the agent was not authorized to make the trade. 3. REPLEVIN-PARTIES-ONE PARTING WITH POSSESSION OF PROPERTY. In replevin against an agent for the sale of plaintiff's horses and another, to whom, without authority, such agent had traded the horses, it was error to dismiss the complaint as against defendant agent, although it appeared on the trial that he had parted with possession of the property in suit. [Ed. Note. For cases in point, see vol. 42, Cent. Dig. Replevin, § 81.] Appeal from City Court of New York, Trial Term. Action by Samuel W. Jones against Robert Richards and another. From a judgment dismissing the complaint, plaintiff appeals. Reversed. This was an action of replevin for certain horses, which belonged to plaintiff and which, while in possession of defendant Leighton, as plaintiff's agent for purposes of sale, were traded by him to defendant Richards. The horses were kept at the stable of one Harrison, on whose books plaintiff was charged with their keep. Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. Albert I. Sire, for appellant. Wentworth, Lowenstein & Stern and Wales F. Severance, for respondents. TRUAX, J. The material issue was did the defendant Leighton have authority to trade the property mentioned and described in the complaint? If he did, the ruling of the court was right. If he did not, such ruling was wrong. I am of the opinion that the defendant Leighton did not have the right to trade the property mentioned and described in the complaint, and that the defendant Richards knew that Leighton did not have the right to trade such property. Richards testified that he knew that Leighton was not the owner of the property. He knew that Leighton was acting as agent for Jones. He did not ask whether Leighton had authority to exchange the property or not. He knew to whom the property was billed on the books of Mr. Harrison, the stable keeper. It is well settled that under such circumstances an agent has not the power to pledge or mortgage his principal's property to a third party. Am. Ency. (2d Ed.) vol. 1, p. 1174; Beck v. Donohue, 27 Misc. Rep. 230, 57 N. Y. Supp. 741; Block v. Dundon, 83 App. Div. 539, 81 Ñ. Y. Supp. 1114; Edwards v. Dooley, 120 N. Y. 540, 24 N. E. 827. I am also of the opinion that it was error for the court to dismiss the complaint as against the defendant Leighton, although it appeared on the trial that Leighton had parted with possession of the property in suit. Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259, cited with approval in Sinnott v. Feiock, 165 N. Y. 447, 59 N. E. 265, 80 Am. St. Rep. 736, 53 L. R. A. 565. See, also, Barnett v. Selling, 70 N. Y. 492, and Dunham v. Troy Union Ry. Co., *42 N. Y. 543. Judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. GUTFREUND v. STANDARD LIFE & ACCIDENT INS. CO. (Supreme Court, Appellate Term. April 24, 1906.) 1. JUDGMENT-RES JUDICATA-MATTERS CONCLUDED. In an action on an accident policy insuring plaintiff against loss by reason of liability for damages resulting from plaintiff's negligence in the use of horses and vehicles, a judgment against plaintiff and others in an action against them as partners, by one sustaining injuries through negligence in the management of a horse and vehicle, was not res judi |