The opinion
Bijur, J. (dissenting).
One KisseTbffrgH, having assigned to plaintiff, as collateral security for loans, $1,500 of his compensation due from the State for professional services, subsequently assigned to defendant, for a nominal consideration, $1,000 out of the same or similarly described compensation.
On presentation of both claims „for $1,500 and $1,000, respectively, to the State Comptroller, $1,000 was paid to each of the parties. This suit for $500 resulted.
I am of the. opinion that the action will not lie.
Butterworth v. Gould, 41 N. Y. 450, 463 , holds that: “ Where a defendant has received moneys due to the plaintiff, but claiming it as his own under circumstances in which he had no authority from the plaintiff, and does not act under any pretense of such authority, and' the payment to him is made in proposed recognition of his title thereto as his own and does not operate to discharge the payor from liability to the plaintiff, then and in such case there is no trust and no implied p'omise to pay the money to the plaintiff.” See also Welch v. Polley, 177 N. Y. 117 ; 27 Cyc. 859.
The chief case cited to support the contrary doctrine is plainly distinguishable.
In Fowler v. Bowery Savings Bank, 113 N. Y. 450 , moneys were withdrawn from defendant by the executor of a husband who had deposited these moneys in trust for his wife. It could not be said, therefore, that the executor, who drew out the deposit, had received the money, claiming it as his own, but rather that he took it, impressed with a plain trust in favor of the wife. It was held by the court that plaintiff, the wife’s executor, had, under these circumstances, an election, i. e., either to hold the bank directly for the deposit, or the husband’s executor as for money had and received.
Judgment affirmed, with costs.