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FRANCES J. O'ROURKE v. RAYMOND J. O'ROURKE (11/17/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 17, 1969

FRANCES J. O'ROURKE, RESPONDENT,
v.
RAYMOND J. O'ROURKE, DEFENDANT, AND WOOD, WALKER & CO., APPELLANT

In an action inter aliato recover damages for conversion, the appeal is from so much of an order of the Supreme Court, Nassau County, entered April 9, 1969 in Suffolk County, as denied appellant's cross motion to dismiss the complaint pursuant to CPLR 3211 (subd. [a]).

Beldock, P. J., Christ, Munder, Martuscello and Kleinfeld, JJ., concur.

In our opinion, the trading authorization executed by respondent, which authorized appellant to follow respondent's husband's instructions in every respect and authorized her husband to act for her with the same force and effect as she might act herself with respect to all things necessary or incidental to the furtherance or conduct of purchases, sales or trades of securities, and which ratified and confirmed any and all transactions thereafter made by her husband, impliedly authorized appellant to deliver a check for the proceeds of transferred stock to respondent's husband. There is no conversion where delivery of property is made by an agent to one other than the owner for the accomplishment of the agency, with the implied consent of the owner (cf. Procter & Gamble Distr. Co. v. Lawrence Amer. Field Warehousing Corp., 22 A.D.2d 420, 426, revd. on other grounds, 16 N.Y.2d 344; see 10 N. Y. Jur., Conversion, ยง 39). Appellant's check was made payable solely to respondent; and appellant was entitled to rely on the fact that it could not be transferred or paid except on respondent's order (cf. Cohen v. Lincoln Sav. Bank, 275 N. Y. 399, 410).

Disposition

Order reversed insofar as appealed from, on the law, with $10 costs and disbursements; cross motion granted; and action as against appellant severed.

19691117

© 1998 VersusLaw Inc.



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