New York & Brooklyn Ferry Co. v. Moore

Decision Date13 April 1886
CourtNew York Court of Appeals Court of Appeals


Appeal from judgment of general term supreme court, Second department, reversing judgment in favor of plaintiff, entered upon trial by court without a jury.

W. C. De Witt, for appellants, New York & Brooklyn Ferry Co. and New York Ferry Co.

James M. Smith, for respondents, John H. Moore and others.


The New York & Brooklyn Ferry Company, a corporation, owned and operated ferries between the cities of New York and Brooklyn from 1864 to May 1, 1879, and the New York Ferry Company, a successor to the former company, owned and operated the same ferries from the latter date to the commencement of these actions. The actions were consolidated, and tried together as one action, and one judgment was entered for the joint benefit of both plaintiffs, and therefore I will speak of them in this opinion as one action.

The complaint alleges that from about the first day of December, 1870, to the sixteenth day of January, 1883, the defendant John H. Moore was employed by the plaintiff as ferry master, and that as such he received a large amount of money for tolls, which it was his duty to pay over to the plaintiff; that he had retained and converted to his use a large amount of such tolls, and had deposited the same in his own name, and in the name of his mother, in various savings banks which were made defendants in this action; that he had also purchased certain real estate therewith, which is particularly described in the complaint; that the plaintiff was ignorant of the items and amounts and dispositions of the moneys so retained and converted, and judgment was demanded that the defendant John H. Moore account for the money received by him as plaintiff's ferry master, and disclose the dispositions and investments of the same; that the deposits in the savings banks and the real estate be impressed with trusts in favor of the plaintiff; and that the plaintiff should have other relief particularly specified.

John H. Moore and Margaret Moore, his mother, severally answered the complaint, putting in issue the material allegations thereof. The issues thus joined were brought to trial at a special term of the supreme court, and the court found that Moore entered the employ of the plaintiff in 1866 as night watchman; that in 1867 he was made bridge-tender and gate-man, and December 1, 1870, was made ferry master, and continued in that capacity until he was discharged, January 17, 1883; that it was his duty to receive fees or tolls for teams and persons crossing plaintiff's ferries, and pay over the whole thereof to the plaintiff; that in his capacities above mentioned he collected and received large sums of money; that he did not pay over the whole thereof to the plaintiff, nor render to it a full, complete, and fair statement thereof, but fraudulently retained and converted to his own use a large amount of the moneys so received for the plaintiff, amounting to at least the sum of $22,869.68, which was deposited with other moneys in the savings banks, and invested in the real estate mentioned in the complaint; and it ordered judgment for the plaintiff, in respect of that sum, substantially according to the prayer of the complaint. The defendants Moore, having filed exceptions to the findings and conclusions of the court, appealed to the general term, where the judgment of the special term was reversed, and a new trial was ordered for errors of law only. The plaintiff then appealed to this court.

It is not disputed that upon the facts found the plaintiff was entitled to the judgment given at the special term. The general term reversed the judgment on the ground that there was no evidence to warrant the findings that the plaintiff had lost any money, or that Moore had wrongfully retained or embezzled any; and such is now the claim of Moore and his mother. As the reversal was upon the law only, we have not to deal with the weight of the evidence, but simply to determine whether there was any evidence which authorized the findings of the essential facts. It was impossible for the plaintiff to furnish any direct evidence of the precise extent of Moore's misconduct. He kept no account, and was not required to keep any, of the moneys received by him for tolls, and the plaintiff had no means of knowing how much money he received. At the end of each day it was his duty to place all the tolls received by him, together with a statement of the amount thereof, in a bag, and deliver the bag at the plaintiff's office. But it had no means of knowing whether the bag contained all the tolls collected during the day. It was able, however, to give evidence which we think fully justified the findings of the special term, and the judgment there given.

Moore was born in 1841, of poor parents. For several years prior to his death, about the year 1856, his father was a day laborer, and his mother did washing for other people, in the way ordinarily done by poor women. Before the death of the father his family consisted of his wife, the defendant Moore, and three young daughters, and they lived in a cheap house, where they hired three rooms. The daughters began to work at about the age of 14; the eldest about 1850, continuing so to do until her marriage, in 1857; the second one about 1860, continuing so to do until her marriage, in 1867; and the youngest, about 1861, continuing so to do until her death, in 1866. In 1862 the son, John H., enlisted in the army, and prior to that time the family were apparently poor, having no visible property except a small amount of cheap furniture. When John H. enlisted, he received a bounty, and then his mother opened a bank-account in the Williamsburgh Savings Bank in the joint names of herself and her son, and deposited therein the bounty received by her son, and other money received by him from time to time during the war, and afterwards, down to January 1, 1867, when the total deposits standing in their joint names amounted to $699.68. After he returned from the war until he entered the employment of the plaintiff, he was hired as the driver of a truck for wages at seven dollars per week. When he applied to the plaintiff for employment, he stated that his mother was very poor; that he could not make both ends meet by the wages he was receiving as driver of the truck; and that it would be a great charity on account of his mother to give him employment. His salary while bridge-man was $50 per month; while gate-man, $60 per month; and while ferry master, a portion of the time $75, and a portion of the time $85, per month. Soon after entering the employment of the plaintiff he, with his mother, began to live in better style, and to deposit money with considerable regularity in different savings banks, depositing in each year, after paying all his living expenses, more than his entire salary. The result was that, at the time of his discharge from the employment of the plaintiff, he had on deposit, in six different savings banks, all in his own name, excepting two, which were in the names of himself and his mother, about $30,000, and had invested in real estate in the city of Brooklyn $15,350. During all this time he had no other business and no other apparent means of making or earning any money.

Where did this considerable fortune, accumulated with...

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