JOHNSON against WHITMAN

JOHNSON against WHITMAN. Supreme Court, First District; Special Term, February, 1871. Arrest. — Fiduciary Capacity. — Jurisdiction.— Law of Place. A banker who receives a remittance from his correspondent, with instructions to send a draft for the amount to a third person, and acknowledges its receipt subject to such instructions, is liable to arrest if he appropriates it to his own use. The courts of this State have jurisdiction, in an action brought here, between parties- resident in other States, to order the arrest of the defendant for fraud in contracting the debt, &c., if he be found within this State, although by the law of the place of his residence he could not be arrested there for the same cause. Motion to vacate order of arrest. This was an action for fraudulent conversion of the proceeds of certain uncurrent money sent by the plaintiffs to the defendants, with instructions to convert the same into bankable money, and remit by draft to A. Bell & Sons, bankers, in New York City. The defendants acknowledged the receipt of the money by letter dated June 18, 1859, and agreed to remit as directed. They did not remit; but soon after failed in business, and made an assignment for the benefit of their creditors, and notified the plaintiffs thereof by letter dated June 28, 1859. Also, that they had given them credit for the amount of the, proceeds of the sale of the uncurrent funds, which would be arranged by their assignee. Both the plaintiffs and defendants were bankers, residing and doing business in the State of Ohio. Hone of the 'transactions referred to took place in the State of Hew York. One of the defendants, while temporarily in this State, was arrested upon an order obtained in this action, upon an affidavit setting out the conversion of the money as above stated, and that he, while acting in a fiduciary capacity as agent for the plaintiffs, had fraudulently misapplied the same. The defendant arrested now moves to vacate the order of arrest upon affidavits setting forth that none of the parties to the action are residents of this State, and that the alleged conversion also took place out of the State—that the alleged misapplication of funds was committed by his partners, he being at the time absent from, home; that for a year previous to June, 1859, the plaintiffs had kept an account with the defendants as bankers and brokers, involving transactions of a similar nature ; and a transcript of such accounts was annexed. A. J. Vanderpoel, for the motion. R. P. Lee, opposed. Compare Brown v. Ashbough (40 How. Pr., 226), where it was held that arrest maybe ordered of a defendant within the jurisdiction, without reference-to where the fraud was committed, or whether the property was ever brought within the jurisdiction. See also De Witt v. Buchanan (54 Barb., 31). [MAJORITY — Brady, J.] Brady, J. The plaintiffs sent to the defendants a package of bank notes, issued by the banks of Cleveland, Ohio, of the value of two thousand four hundred dollars, with instructions, per letter, directing them to send their draft therefor to Abrm. Bell & Sons. The defendants advised the plaintiffs of the receipt of the money and instructions, and in the letter of advice stated that they had remitted, pursuant to instructions. They did not, however, remit, as stated, or account for the money, but used it for their own purposes. It appears that the parties, prior to that remittance, had business transactions of a kindred character, but it does not appear that any of them remained unfinished when the last remittance was made. It is assumed from these transactions, that the relation of debtor and creditor was created, and that the defendants did not, therefore, receive the money upon any trust. This position cannot be maintained. The remittance was for a particular purpose, and was so understood by the defendants. They acknowledged its receipt, as already stated, and advised the plaintiffs that the application of the funds had been made as directed. That such a violation of duty and appropriation of funds as marks the conduct of the defendants, renders them liable to arrest under the provisions of the Code of Procedure, there can be no doubt. The jurisdiction of this court cannot be doubted, although the parties hereto are residents of another State. The defendant who was arrested, by coming hither, subjected himself to the lex fori which prevails in this State; and therefore to arrest, even if, for the charge against him, he could not be arrested at his place of residence. The doctrine has been declared in a case in which, as in this case, the parties were not residents of this State (Smith v. Spinola, 2 Johns., 198; Sicard v. Whale, 11 Id., 194). The lex fori governs in such cases (City Bank v. Lumley, 28 How. Pr., 397). The case of Blason v. Bruno 33 Barb., 520 , does not conflict with these views. That case is an authority only for the proposition that an order of arrest upon the charge of fraudulently disposing of property should not be granted, when the fraud complained of was not committed in this State, and the property not brought here. Whether it would not be the better exercise of discretion to refuse to grant an order of arrest in an action between parties residing in the same, but not in this State, is a subject upon which judges may differ. In this case, however,. the order having been granted, the discretion having been, therefore, exercised, and the order being lawful, it cannot be discharged. Motion denied.