Judgment affirmed, with costs, on the opinion of Mr. Justice Wilmot M. Smith at Special Term. Leave to appeal to the Court of Appeals will be granted on application. Goodrich, P.J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.
The following is the opinion of Mr. Justice Wilmot M. Smith delivered at Special Term:
WILMOT M. SMITH, J.:
I find that the money and bonds which defendant Robert A. Ammon placed in the hands of Seymour, Johnson Co. had been obtained by defendant Miller from various persons under circumstances which the Court of Appeals has decided constituted larceny; that the money was given by Miller to Ammon as his agent to hold for Miller's benefit. I decide that it is immaterial whether the legal title to the money passed to Miller or remained in the persons who placed it in his hands. It belongs to his creditors, unless it came into the hands of a bona fide owner for value. I find that Robert A. Ammon was not a partner of Seymour, Johnson Co; that the money contributed by him was not contributed as a partner, but was a loan for which the firm gave to Ammon their notes, and that the arrangements by which Ammon received a part of the profits of the firm was made that Ammon might receive a bonus for his personal benefit. The creditors of Miller are not estopped from claiming their share of the assets of the firm of Seymour, Johnson Co. because of representations made by the firm to its customers that contributions had been made to the capital of the firm by a special partner, because no such contributions were made; this statement was false. The plaintiff can maintain this action because the relief sought could not otherwise be obtained. The plaintiff is entitled to judgment for the relief demanded in the complaint, with costs.