O'BRIEN, Appellant, v. SMITH, Respondent

O’BRIEN, Appellant, v. SMITH, Respondent. (Supreme Court, General Term, First Department. June 14, 1895.) Appeal from special term, New York county. Action By Michael ■O’Brien against Robert J. Smith. Edward W. S. Johnston, for appellant. Frederic A. Ward, for respondent. [MAJORITY — PER CURIAM.] PER CURIAM. This action was begun September 9, 1889, by an assignee of Margaret Smith, to compel the defendant to account for moneys which, it is alleged, he wrongfully converted to his own use between November 1, 1880, and September 11, 1883, while employed by the assignor as the manager of her retail liquor store at Nos. 56 and 58 Columbia Place, Brooklyn. The allegations in the complaint are wholly on information and belief, but it is not alleged how much money the assignor lost, nor when the defendant converted it. At the close •of the plaintiff’s case the defendant rested, and the court held that there was no evidence that the assignor had lost any money, or that the defendant had retained any of her money. The court also found that the assignment was colorable only, the assignor retaining an interest in the alleged cause of action. After reading the evidence we are satisfied that the plaintiff utterly failed to prove his cause of action, and that the judgment should be affirmed, with costs.