2. SAME-VARIANCE.

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A complaint alleged that defendant, while acting as attorney for plaintiff's testator, received money for investment; that defendant did not make the investment, or pay the money to testator, or to any one for his benefit; and that plaintiff had demanded payment, which defendant refused, to plaintiff's damage. An order of arrest in the action recited the ground there for as for a conversion of money embezzled or fraudulently misapplied by defendant, while attorney for plaintiff's testator. Held, that there was no variance, since the cause of action, as stated. leads only to the conclusion that defendant was an embezzler.

Appeal from special term, Kings county.

Action by John W. B. Quail and another, as executors of the will of James T. Quail, deceased, against Jesse S. Nelson. From an order denying a motion to vacate an order of arrest, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

H. F. Lawrence, for appellant.

Richard J. Lewis (Thomas J. Rush, on brief), for respondents.

WOODWARD, J. We are asked to reverse the order denying the motion to vacate the order of arrest in this action on the grounds (1) that there is a variance between the causes of action alleged in the complaint and the grounds of arrest stated in the order; (2) that the recital of the grounds for the order, stated in said order, is fatally defective. The complaint sets forth two causes of action, substantially alike, except in the amount involved, the first being all that it is necessary to discuss at this time. The death of the plaintiffs' testator, followed by the appointment of the plaintiffs as executors, is alleged. It is then alleged that defendant, while acting as attorney for James T. Quail, plaintiffs' testator, received for his account the sum of $4,000, for the purpose of investing the same upon bond and mortgage; that the defendant did not make such investment, and did not pay the said sum to the said James T. Quail, or to any other person for his benefit or on his behalf; the payment by the said defendant to the plaintiffs of the sum, which defendant represented to be six months' interest upon said principal sum; demand of the said sum of $4,000, or security therefor, from the defendant, and defendant's neglect and refusal to pay or deliver same, to the plaintiffs' damage, etc. In the order of arrest, complying with the provisions of rule 13, Gen. Rules Prac., it is stated that "the ground of arrest is the conversion of money embezzled or fraudulently misapplied by said defendant in the course of his employment as attorney for the aforesaid James T. Quail, deceased." The attention of the court is called to Cronin v. Crooks, 143 N. Y. 352, 38 N. E. 268, in which section 641 of the Code of Civil Procedure was under consideration, and where the court held that an allegation that the defendant “has assigned and disposed of, or is about to assign or dispose of, her property," did not comply with the provision of the Code that the warrant "must briefly recite the ground of the attachment." In that case it is said:

"This warrant stated no ground, for to state in the alternative is to state neither the one nor the other fact. Such an alternative statement of grounds results in a mutual exclusion."

In an almost identical case (Johnson v. Buckel, 65 Hun, 601, 20 N. Y. Supp. 566, cited in the above case), the court say:

"Where, therefore, an attachment is sought upon the theory of a fraudulent disposition of all a debtor's property, the affidavits should be directed to showing that the debtor has done either one or the other, because the doing of both at the same time is necessarily inconsistent. In other words, if a debtor has assigned or disposed of his property, it eliminates the idea that he is about to assign and dispose of it."

See, also, Hale v. Prote, 75 Hun, 13, 26 N. Y. Supp. 950.

In the case at bar, while the ground is stated in the alternative form, there is in it none of that inconsistency found in the case to which attention is called. The language is that "the ground of arrest is the conversion of money embezzled or fraudulently misapplied." Bouv. Law Dict. (2d Ed.) defines "embezzlement" as "the fraudulently removing and secreting of personal property, with which the party has been intrusted, for the purpose of applying it to his own use"; and the court, in using the words "embezzled or fraudulently misapplied," was simply giving a definition of the offense which justified the issuing of a warrant of arrest. The fraudulent misapplication of funds with which the party has been intrusted is embezzlement, and embezzlement is the fraudulent misapplication of such funds. The court has complied with the requirement of rule 13, Gen. Rules Prac., in making a brief statement of the grounds on which the order of ar rest is made. The cause of action set out in the complaint leads irresistibly to the conclusion that, if the facts are established by the evidence, the defendant has been guilty of embezzlement, and the court below was fully justified in refusing to grant the motion to vacate the order of arrest.

The order appealed from should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements. All concur.

BLANCK v. NELSON.

(Supreme Court, Appellate Division, Second Department. March 24, 1899.) 1. PLEDGEE-CONVERSION-RIGHT OF ACTION.

Where plaintiff holds bonds as collateral security for a debt due him, he has such a special property therein as authorizes him to maintain an action for their conversion.

2. MISJOINDER OF CAUSES OF ACTION-MISCONDUCT OF ATTORNEY.

Complainant alleged, for one cause of action, that defendant, while acting as his attorney, obtained possession of bonds for the purpose of selling them, and had refused to return them or pay the proceeds; and, for a second, that he delivered to defendant, while acting as his attorney, a mortgage and satisfaction thereof, and that he received the amount due thereon, and had refused to pay it to plaintiff. Held not a misjoinder of causes, since both are based on the misconduct of defendant as attorney.

Appeal from special term, Kings county.

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Action by Thomas J. Blanck, as trustee under the will of John W. Blanck, deceased, against Jesse S. Nelson. From an ordering denying a motion to vacate an order of arrest, defendant appeals. Affirmed.

The complaint contained two causes of action,-the first alleging, in substance, that defendant, while acting as attorney for plaintiff, obtained possession of certain bonds deposited with plaintiff as collateral security for the payment of a note, for the purpose of selling the same and procuring the proceeds for the benefit of plaintiff, and that plaintiff demanded from defendant the bonds, or the proceeds thereof, and he refused to either turn over the bonds, or pay the proceeds to plaintiff; and the second, that defendant, while acting as attorney for plaintiff, informed him that certain mortgagors desired to pay off a mortgage held by him, and advised him to execute a satisfaction, which he did, and delivered both the mortgage and the satisfaction to defendant, for the purpose of receiving the money, which defendant did, and had refused to deliver it to plaintiff.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

H. F. Lawrence, for appellant.'

Richard J. Lewis (Thomas J. Rush, on the brief), for respondent.

WOODWARD, J. We think the first cause of action set forth in the complaint is good. It is true, the plaintiff held the bonds there mentioned only as collateral security for the payment of the debt to him. Nevertheless, his special property as pledgee was sufficient to authorize him to maintain an action for conversion of the bonds against any wrongdoer. The damage to the plaintiff by the conversion of the bonds is apparent. Even assuming that the debtor pays his note to the plaintiff, the plaintiff must return the bonds to the pledgor, or account for their value. The complaint sets forth facts which, if established by the evidence, are sufficient to constitute embezzlement, and to subject the defendant to arrest under the provisions of section 549 of the Code of Civil Procedure; and if it should happen that the court, in complying with rule 13, has stated more than is necessary in the order of arrest, it can give the defendant no immunity. In other words, if the complaint sets forth a good cause of action against the defendant for the embezzlement of money while acting in the capacity of an attorney for the plaintiff, the order of arrest is not invalidated because it is stated in the order that "the ground of arrest is the conversion of money and property embezzled or fraudulently misapplied by said defendant in the course of his employment as attorney for said plaintiffs."

There does not appear to be any force in the contention that the causes of action are misjoined. They are both based upon the misconduct of the defendant while acting as attorney for the plaintiffs, and are clearly within the scope of section 484, Code Civ. Proc.

In the case of Quail v. Nelson, 56 N. Y. Supp. 865, which has received the attention of this court at the present term, we have considered the remaining points urged upon the attention of the court in the case at bar, and it is not necessary to again go over the ground. The order appealed from should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements. All concur.

PEOPLE v. ADIRONDACK RY. CO. et al.

(Supreme Court, Appellate Division, Third Department. March 8, 1899.) 1. EMINENT DOMAIN-RAILROAD RIGHT OF WAY-FILING MAP-RIGHTS ACQUIRED-CONVEYANCE TO STATE.

Where a railroad company had acquired a franchise to operate its road through the Adirondack Park, and had filed in several counties the map of its proposed road, and had given the required notice to the owners of land at a time when the state had not acquired any interest in the land or taken any proceedings to condemn it, it had impressed the land with a lien in favor of its right to construct, so that any conveyance by the owner of such land to the state was subject to such right.

2. SAME SUBSEQUENT CONDEMNATION BY STATE.

Where a railroad company has laid out and filed its route under its franchise, condemnation proceedings by the state, under Laws 1897, c. 220, §§ 3, 4, giving it a right to condemn land for a park, will not affect the right of the railroad company in lands thereafter condemned by the state under such act, where no notice whatever of the condemnation proceedings was given to the railroad company, and no description of its rights or claim to the strip in question was mentioned in the certificate filed.

Herrick, J., dissenting.

Appeal from special term, Albany county.

Action by the people of the state of New York against the Adirondack Railway Company and others. The action is one to enjoin the defendant from taking, by condemnation proceedings, any part of the lands described in the complaint, for the purpose of its railway, on the ground that it is within the bounds of the "Forest Preserve" and of the "Adirondack Park." Upon the trial at special term, a judgment was rendered in favor of the plaintiff for the injunction so asked (54 N. Y. Supp. 682), and from such judgment this appeal is taken. Reversed.

Argued before PARKER, P. J. and LANDON, HERRICK, and MERWIN, JJ.

R. Burnham Moffat and Lewis E. Carr, for appellant.

T. E. Hancock, Atty. Gen., G. D. B. Hasbrouck, Dep. Atty. Gen., and Edward Winslow Paige, for the People.

PARKER, P. J. The defendant had acquired from the state a franchise to build and operate its road through the counties and region which the state subsequently, by Act 1895, c. 395, § 290, provided might be acquired for the purposes of the "Adirondack Park." Under the franchise so acquired, the defendant was proceeding to extend its road through such counties, and to that end, on the 18th day of September, 1897, filed in the several counties in question a map and profile of its proposed route, and at once gave the requisite notice to the owners of the lands through which it passed. Such proposed route has never been changed. At that time the state had not acquired any interest in the strip of land so located. There is no claim that it had either acquired a conveyance of, or taken any proceedings to condemn, such strip prior to that date.

It is said in Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 44 Hun, 206-210, that, when a railroad company has filed the

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map and given the notice required by the statute, it has thereby "acquired a vested and exclusive right to build, construct, and operate a railroad on the line which it has adopted." And again, on page 211, it is said that such railroad company "has a franchise conferred upon it by the legislature to construct its road over the established line." This case decided that the owner to whom such notice was given, and who had failed to obtain a change of the line in the method provided by the statute, could not convey the land over which such line passed to a purchaser or lessee, unaffected by the company's right to complete its title by condemnation, and thereafter to construct its road thereon. This decision was unanimously affirmed by the court of appeals (110 N. Y. 128, 17 N. E. 680); and in that case, on page 133, 110 N. Y., and page 682, 17 N. E., the following language is used:

*

"This right to locate its line of road, at its election, is delegated to the corporation by the sovereign power; as is the right subsequently to acquire, in invitum, the right of way from the landowner and any land needed for the operation of its road. When, therefore, a corporation has made and filed a map and survey of the line of route it intends to adopt for the construetion of its road, and has given the required notice to all persons affected by such construction, and no change of route is made, as the result of any proceeding instituted by any landowner or occupant, in our judgment it has acquired the right to construct and operate a railroad upon such line, exclusive in that respect as to all other railroad corporations and free from the interference of any party. By its proceedings it has impressed upon the lands a lien in favor of its right to construct, which ripens into title through purchase or condemnation proceedings."

See, also, Suburban Rapid-Transit Co. v. City of New York, 128 N. Y. 510, 28 N. E. 525; Waterworks v. Bird, 130 N. Y. 256, 29 N. E. 246.

Upon the authority of these cases, it is clear that, as a purchaser, the state took, under the conveyance to it of the strip of land in question, no title, except such as was subject to the right of the defendant to perfect, by condemnation proceedings, its title thereto. At the time the defendant filed its map and gave the notice above stated, the strip described therein was no part of the Adirondack Park nor of the Forest Preserve. Until purchased or condemned, it was no part of such premises, and it never would become a part thereof, unless, in the judgment of the proper commission, it was deemed necessary for such purpose. When the commission, after concluding that it was necessary, attempted to procure the same, this strip had become impressed with the rights of the defendant, as above specified, and any conveyance which the owner could give was subjected to that right. So far as the state claims under its deed, it stands simply as a purchaser. It acquires the rights which its grantor had,-no more,-and, as purchaser, it can claim no more. By making the purchase and taking that conveyance, the state was not exercising the right of eminent domain; it was simply acquiring, by contract, the title which the Indian River Company then had. No other rights than theirs were transferred, and no others were affected by such conveyance. It was upon this theory that a majority of the court concurred in the case of Adirondack R. Co. v. Indian River Co., 27 App. Div. 326, 50 N. Y. Supp. 245.