Robert Strahl, as President of the Brooklyn Hebrew Dispensary Society, Respondent, v. Jacob Fink, Appellant

Robert Strahl, as President of the Brooklyn Hebrew Dispensary Society, Respondent, v. Jacob Fink, Appellant. Second. Department, April 23, 1909. Money had and received — negligence no basis of recovery. Where the treasurer of an unincorporated association received a worthless check from his predecessor in office for the sum which he should have turned over, and having never collected the check, reported the amount as cash on hand, he cannot be held as for money had and received, although the association sustained loss through his negligence. Appeal by the defendant Jacob Fink, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of April, 1908, after trial before the court without a jury. Morris Walzer [Edward E. Rosenblume with him on the brief], for the appellant. Bernhard Bloch, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This action is brought by an unincorporated association against its treasurer for money had and received, and the plaintiff has recovered. It is conceded that the money sued for was never in the possession of the defendant, but is represented by a worthless check given to him by his predecessor in office, and which he reported to the association as cash on hand. This check did not discharge the liability, of the former treasurer to the association for the money in his hands; it was never paid over by him. Proof that the plaintiff has sustained loss or damage through the negligent acts of the defendant is not sufficient to maintain an action for money had and received. (National Trust Co. v. Gleason, 77 N. Y. 400.) The judgment must be reversed and a new trial ordered, costs to abide the event. Woodward, Jenks, Gaynor and Burr, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.