#### Sheridan Shook *et al.,*Respondents, *against*James D. Lyon, Appellant.

(Decided December 1st, 1890.)

Defendant was employed by plaintiffs as book-keeper and cashier, it being his duty to receive payment of money and turn it over to them and enter the receipt thereof in their books. In an action by them against him for the amount of such a payment received by him and alleged not to have been paid over, he admitted that he had received the money, and that no entry thereof had- been made in their books. *Held,*that this was sufficient, even as against the presumption of his innocence, to cast' on him the burden' of proving that the money actually came to the possession or custody of plaintiffs.

Plaintiffs had brought another action against defendant for conversion of a part of another sum. of money which they alleged he had previously received for them, but had entered in their books and accounted for part only thereof. *Held,*that the pendency of such other action was not a bar to their action to recover the other payment subsequently received by him, as money had and received to their use; as the receipt of and failure to account for each sum constituted a separate cause of action, although both demands arose out of his employment.

Appeal from a judgment of the District Court in the City of New York for .the Sixth Judicial District.

The facts are stated in the opinion.

*George W. Werffenbach,*for appellant.

*David M. JSfeuberger,*for respondents.

Bischoff, J.

The plaintiffs were brewers engaged in business under the firm name of Shook & Everard, and the defendant was employed by them as bookkeeper and cashier for a period exceeding ten years. In the course of his employment it was the duty of the defendant to receive payment of money from customers and to account therefor to the plaintiffs, by turning over the money received, entering the receipt thereof' in the. cash book kept for that purpose, and *421crediting' the customer’s account with the sum paid. After the defendant had left the plaintiffs’ employ they discovered that one John H. Enhuss, a customer, held two receipts of the defendant purporting to be for money paid by Enhuss to the defendant on account of his indebtedness to the plaintiffs. These payments were made on separate and distinct occasions: one being for the sum of one hundred and fifty dollars, for which, upon a corresponding date, the defendant had entered upon the plaintiffs’ books, the receipt of only one hundred and twenty-five dollars ; the other was for seventy-five dollars, for which no entry whatever had been made. Plaintiffs brought two actions in the Sixth Judicial District Court, one being for the conversion of twenty-five dollars, the amount remaining uncredited on the one hundred and fifty dollar payment, and the other being for seventy-five dollars, money had and received to the use of the plaintiffs. The summonses in both these actions were served at the same time, and trial therein had on the same day. The trial in the suit for conversion immediately preceded the trial in the suit for money had and received ,the decision in the former being reserved, at the time of the trial of the latter, which is the action wherein the judgment appealed from was rendered. To the claim of the plaintiff in the last-mentioned action the defendant had interposed the defense of “another action pending.”

It appeared on the trial that it was the duty of the defendant as plaintiffs’ cashier and bookkeeper to receive monies from customers, to give receipts therefor, and to enter the sums paid in a cash book provided for such purpose, and to credit the customer paying the same therewith. It was admitted by the defendant that he had received the seventy-five dollars from Enhuss, and that no entry of this sum had been made by him in plaintiffs’ books.

But, it was urged on behalf of the defendant, that the mere omission to make such entry was not, in itself, sufficient-proof, that he had not accounted to the plaintiffs for the money received ; and that to authorize a recovery against the defendant, the plaintiffs were bound to establish by other positive *422and direct evidence the defendant’s failure to account to them for monies received.

To establish the defense of another action pending, the defendant offered in evidence the record of the action for conversion of twenty-five dollars ; from which record it appeared that the sum alleged to have been converted was no part of the sum sued for in this action, but was part of a payment, made by Enhuss upon a former separate and distinct occasion.. The justice in the district court thereupon rendered a judgment in favor of plaintiffs for ninety-two dollars and fifty cents, the amount sued for, with seventeen dollars and.,fifty, cents costs and disbursements, and from this judgment the defendant has appealed.

: On the argument of this appeal counsel for defendant claimed that the judgment was erroneous, and assigned two distinct grounds of error, to wit: first, that because of the want of direct and positive evidence to the effect that the defendant had omitted to turn over the money received, the-plaintiffs’ recovery was unauthorized; and, second, that the plaintiffs had exhausted their right of recovery against the defendant by the action for the conversion of the twenty-five dollars, because both demands arose out of the defendant’s employment, and- the pendency of the suit for the conversion of twenty-five dollars .operated as. a complete bar to the. maintenance of this action.

Upon an examination, however, of the questions presented, Tye are satisfied that neither ground.is tenable.

: The difference between circumstantial and direct evidence is only one of degree, but both classes of evidence are alike applicable, to all cases.

The admitted receipt of the sum paid by the plaintiffs’; customer, in view of the facts that it was the defendant’s duty to enter the receipt of these monies upon the plaintiffs, books in the-regular course of his employment, that it was his duty to account to the plaintiffs for the monies received,- and that he omitted to. make such entry and such account if this is not to be deemed sufficient to cast upon the defendant the burden of proving that, notwithstanding such omis*423sions, the monies were otherwise actually accounted for, and if, in the absence of such proof, plaintiffs should not be-allowed to recover, it would be difficult to conceive of any case wherein recovery could be had upon circumstantial evidence alone.

Upon the argument defendant’s counsel urged, that the presumption of innocence, when the gist of the action is to convict the defendant of a wrong, applies with equal force in civil actions; and that therefore no presumption can arise that the defendant did not account to the plaintiffs for money received, from the mere omission to make the entries on the books of the plaintiffs. The position assumed by defendant’s counsel is incorrect. The true rule applicable to all civil actions is, that the party having the affirmative must prove his case by a preponderance of evidence to sustain a recovery, always giving the defendant the benefit of the presumption of innocence (See *Seyboldt*v. *New York, etc., R. Co.,*95 N.Y. 562; *Johnson*v. *Agricultural Ins. Co.,*25 Hun 251; 3 Greenleaf on Evidence § 29). And, in an action to recover a penalty for a violation of the statute forbidding the sale of imitation butter, although the act complained of is made a misdemeanor by the statute and punishable as such, the plaintiff is not obliged to establish his case beyond a reasonable doubt; but it is sufficient if there be a preponderance of evidence in his favor *(People*v. *Briggs,*114 N. Y. 56).

In support of his contention, counsel for appellant cites the case of the *New York & Brooklyn Ferry Co.*v. *Moore*(32 Hun 29); this case was reversed by the Court of Appeals (See 102 N.Y. 667). The report of the disposition of this case by the Court of Appeals, however, in the New York reports, does not contain the opinion. But in the report of the same case in 18 Abbott’s New Cases, 114, Judge Earl, writing the prevailing opinion, says; “ There is no rule of law which requires the plaintiff in a civil action, when the judgment against the defendant may establish his guilt of a crime, to prove his case with the same certainty which is required in criminal prosecutions. Nothing more is required in such cases than a just preponderance'of evidence, always, giving the defendant the *424benefit of the presumption of innocence. Where a judgment for the' plaintiff involves crime or a moral turpitude on the part of the defendant, the court should always require satisfactory proof; and when that has been given, judgment should follow, regardless of consequences. In no other way can the law be properly administered and private rights effectually protected.”

But, assuming for the sake of argument that the contention of defendant’s attorney is correct, the presumption of innocence is at most a disputable presumption of law, arbitrarily created, but to be overcome by the inferences which reasonable and fair-minded men may draw from the facts; as, for instance, the possession of stolen property recently after the larceny; in such a ease it has been held that the possession of the stolen property, if unexplained, is sufficient to overcome the presumption of innocence and to warrant a conviction *(Stover*v. People, 56 N.Y. 315).

The case at bar was tried before the justice in the court below without a jury, and it was therefore competent for him on the evidence to determine both the law and the facts, which he has done adversely to the defendant. It was admittedly the duty of the defendant in the regular course of his employment to account to the plaintiffs for monies received to their use, by entering the monies so received upon their books, and his omission to make such entries will support an inference that he has not so accounted. The inference may be slender, but it is sufficient to call upon the defendant for proof that, notwithstanding the omission to make the entry and his breach of duty in that respect, the monies received by him did actually come into the possession or the custody of the plaintiffs. An attempt was made by the defendant to supply this proof, and to that end testimony was given for the defendant to the effect that the omission to make the entry of receipt on thé books of the plaintiffs may have been accidental and without design; that notwithstanding such omission defendant may have accounted to the plaintiff for the money received. But it is apparent that this is only a possible explanation of the defendant’s delinquency, and does not tend *425to show that an accidental omission to make the entry in this case is the true solution of the defendant’s apparent neglect to account to the plaintiffs for the monies received by him. The trial justice, in reaching the conclusion which he did, may have been influenced by the manner and appearance of the defendant on the witness stand, and, inasmuch as the evidence will support an inference adverse to the defendant, an appellate court should not, for the sole reason that upon the same state of facts it might have reached a different conclusion, interfere with the findings of the court below *(Baird*v. Mayor, 96 N. Y. 567).

The pendency of the action for the conversion of twenty-five dollars was not a bar to the maintenance of this action. We recognize the force of the rulings in *Bendernagle*v. *Cocks*(19 Wend. 206); *Jex*v. *Jacob*(19 Hun 105) *; Secor*v. *Sturgis*(16 N. Y. 548); *Perry*v. *Dickerson*(85 N. Y. 345), and kindred cases ; but these rulings have no application in the case at bar.

The rule, as stated in the head note in *Bendernagle*v. Cocks, is as follows : “ Where a party hath several demands or existing causes of action growing out of the same contract, or resting in matter of account, which may be joined and sued for in the same action, they must be joined; and if the demands or causes of action be split up, and a suit brought for part only, and subsequently a second suit for the residue, the first action may be pleaded in abatement or in bar ” of the second action.

The error into wliich the learned counsel for the defendant has fallen seems to be that the plaintiffs’ right of action for the monies received by the defendant rested in the contract of employment of the defendant, as the plaintiffs’ bookkeeper and cashier. The right of action, however, respecting such monies was complete without proof of such employment. Leaving that element entirely out of the case, it would have been sufficient to authorize a recovery by the plaintiff, to show that the defendant had received the sums unaccounted for, for the purpose of paying the same to the plaintiffs, and for the conversion of these monies the defendant was answer*426able in damages (See *Gordon*v. Hostetter, 37 N. Y. p. 99).

The right of action, however, where the property or money alleged to have been converted came lawfully into the possession of the person sought to be charged, as in the case at bar,.was not complete without a previous demand (1 Addison on Torts, 398; *Storm*v. Livingston, 6 Johns. 44).

And without, proof of such demand. and of a refusal to deliver, a conversion is not proven. And where the person from whom a recovery is sought for an alleged conversion is charged with the receipt of several items of money or personal property on separate and distinct occasions, proof of the demand of one of such items only will not sustain a recovery for the items respecting which no demand has been shown. The right of action in such cases. accrues only from the time of the demand, and hence it must follow that the right to recover for the several items constitutes separate and distinct causes of action. 'This is elementary ; but if an authority is needed to support this view, it may be 'found in the case of *Secor*v. *Sturgis*(16 N. Y. 548), relied upon by defendant’s counsel, wherein Judge Strong says: “In the case of torts each trespass or conversion or fraud gives a right of action, and but a single one, however .numerous the items of wrong or damage may be.”

The action for money had and received proceeds upon the theory of a promise, express or implied, that the person receiving the money will pay the same to the person seeking to recover (See *Eddy*v. Smith, 13 Wend. 469 ; *Garr*v. Martin, 20 N. Y. 306). And thus the several" payments, made by one person to another on separate and distinct occasions, to be paid to a third person, constitute as many separate and distinct promises to pay as there are payments, and each promise must necessarily confer upon the person entitled to the monies received a separate and distinct cause of action. It was no more essential to the plaintiffs’ right of recovery in an action for money had and received, than it would have been in an action for conversion, to prove the defendant’s employment as bookkeeper and cashier of the plaintiffs. If he had been a complete stranger to the plaintiffs, the fact that *427he had received a sum of money from another to be paid by him to the plaintiffs, in law created a promise so to pay, and was sufficient to entitle the plaintiffs to judgment. And having separate causes of action existing at one and the same time, they were not required to combine them in one action *(Perry*v. Dickerson, 85 N. Y. 350). And though the plaintiffs had knowledge of the existence of these several demands at the time of bringing an action upon one of them, a recovery in that action will not defeat 'a recovery in actions subsequently commenced upon the remaining demands *(Byrne*v. Byrne, 102 N. Y. 4).

The foregoing views do not trespass upon any legal principle, and appear to be in consonance with justice.

A different conclusion would enable a dishonest employe to reap advantage from the temporary successful concealment of continued defalcations, by suffering a recovery against him for the items of his defalcations which may be known to the employer at the time of bringing his action, and which may constitute but a small fraction of the entire sum misappropriated.

The judgment appealed from should be affirmed, with costs.

J. F. Daly, Ch. J., and Pryor, J. concurred.

Judgment affirmed, with costs.