Strahl v. Fink (132 A.D. 12, 1909)

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.