FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. tion, will not estop the wife, as against her husband's creditors, from asserting her ownership of the property, unless it appears that she knew that her husband was holding himself out as the owner of the property. APPEAL by the plaintiff, Alonzo M. Woolsey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of March, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff's complaint upon the merits. Louis F. Doyle, for the appellant. Abraham A. Joseph, for the respondents. PATTERSON, J.: The plaintiff on the 27th day of December, 1901, recovered a judgment against the defendant Christian Henn; execution was issued thereon and was returned unsatisfied. Thereafter he brought this action to set aside a conveyance of real estate made by Christian Henn to his wife, the defendant Annie Henn, on the 23d of September, 1901, it being alleged in the complaint that such conveyance was executed and delivered with intent to hinder, delay and defraud the creditors of Christian Henn. On the trial of the action the complaint was dismissed on the merits, and from the judgment entered thereon this appeal is taken. The ground upon which the complaint was dismissed is that the property, which was the subject of the conveyance, never belonged to Christian Henn, but did belong to his wife. The court found such to be the fact, and the finding was fully justified by the evidence. The property was bought with Mrs. Henn's money and she was equitably entitled to it. It was purchased in February, 1895; the deed was taken in the name of Christian Henn, as grantee, but without the knowledge of Mrs. Henn, who did not discover that the title stood in the name of her husband instead of in her own name, until July, 1901, which was the first time she saw the deed after its delivery. Meanwhile it had been in the custody of her husband. On reading the record we see no reason for differing with the learned judge at Special Term that the story told by the defendants App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. with respect to the deed is true. When Mrs. Henn discovered the situation of the title she demanded a conveyance from her husband. She went to the country in July, 1901, and did not return until September, and then her demand was complied with. Although the conveyance was voluntary, it simply operated the restitution to the true owner of her property. It is claimed, however, that this real estate should be subjected to the claims of Christian Henn's creditors, because credit was given him on the strength of representations made by him to a mercantile agency that he owned this specific property, and that Mrs. Henn should be estopped by negligence from claiming that it did not belong to her husband. Our attention is called to what was decided in Sloan v. Huntington (8 App. Div. 93), but there it appeared that the judgment debtor was allowed to retain title to the property and credit was given while the title thus remained in him with the apparent acquiescence of the real owner, and negligence in asserting or enforcing a right under those circumstances was regarded as constituting an estoppel. In this case, however, the facts are different. Mrs. Henn did not know that the title was not in her name. The transactions out of which the indebtedness of Christian Henn arose and in respect of which credit was given in reliance upon his false statement of ownership of the property, all took place before she discovered that the title was not in her name, except the renewal or discounting of a note by the Plaza Bank in September, 1901. The evidence is entirely insufficient to show that at that date and with respect to that isolated transaction, the Plaza Bank relied upon any representation then made by Christian Henn. The negligence that would estop the real owner from asserting a right to property in an action of this character is referred to and stated in Trenton Banking Co. v. Duncan (86 N. Y. 228) where it is said that "It is undoubtedly true that the owner of real or personal property may by his conduct in inducing others to deal with it without informing them of his claim, debar himself from asserting his title to their injury." That was an action to set aside a conveyance of real estate made to Alexander Duncan by members of the firm of Duncan, Sherman & Co., and it was sought to have the land subjected to the lien of a judgment obtained by the plaintiff against the members of that firm. There, as here, there was no fraud in the conveyance, and while it was held FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. that the principle referred to applies to protect creditors who have given credit upon the faith of the apparent ownership of lands in the possession of a debtor against a secret and unrecorded conveyance, fraudulently concealed by the grantee, he having knowledge that the debtor was holding himself out as owner and gaining credit thereby, yet in the absence of fraud or clear evidence of knowledge on the part of the defendant of circumstances which called upon him to put the deed upon record, that deed would not be avoided; and it was also decided that even if the debtor held himself out as owner or was guilty of fraud, the defendant could not be charged with the consequences in the absence of knowledge on his part. As, in that case, neglect to record the deed was not sufficient to avoid it, here, Mrs. Henn's failure to have the title put in her name, she being actually ignorant of its situation, is not sufficient to avoid the conveyance to her. The judgment appealed from should be affirmed, with costs. VAN BRUNT, P. J., INGRAHAM, HATCH and LAUGHLIN, JJ., concurred. Judgment affirmed, with costs. OTTO KELSEY, as Receiver of THE MANHATTAN FIRE INSURANCE COMPANY OF New YORK, Respondent, v. BANK OF MANSFIELD, Appellant. Attachment-action by a receiver of a corporation against a bank which was alleged to have cashed a check wrongfully drawn by the officers of the corporation · - when the action is for conversion. Upon a motion for an attachment it appeared that the complaint in the action alleged that an insurance company of which the plaintiff was the receiver had on deposit in the defendant bank a certain snm of money; that the president and cashier of the insurance company wrongfully made a check payable to the order of the defendant bank; that the drawers signed the check as president and cashier of the insurance company and that it was drawn on a fund deposited to the credit of the insurance company in the defendant bank, which fund was the property of and belonged to the insurance company; that thereupon the check was delivered to the defendant and that the defendant wrongfully appropriated and charged the same against the account and deposit of the insurance company and wrongfully credited the amount of the check to App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. and in cancellation of an individual indebtedness of the persons who signed the check. It was also alleged that the officers of the defendant had full knowledge of the misappropriation of the amount of the check by such officers of the insurance company and that a demand had been made upon the defendant for the amount thereof. An affidavit was also submitted to the effect that the president of the defendant bank admitted that the check in question was cashed and the amount thereof appropriated to the extinguishment of the individual indebtedness and obligation of the signers of the check. Held, that an attachment was properly granted on the ground that the action was for conversion; That it might be inferred from the complaint that the relation which existed between the insurance company and the defendant bank was not simply the ordinary relation existing between a bank and a depositor, but that the fund in question was a fund specially deposited with the defendant bank; That it also appeared from the affidavit that the money paid upon the check was separated from the general funds of the bank as money of the insurance company, and that an action would properly lie for the conversion of the money thus separated. APPEAL by the defendant, the Bank of Mansfield, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of May, 1903, denying the defendant's motion to vacate a warrant of attachment granted herein. James M. Gifford, for the appellant. Charles R. Coville, for the respondent. PATTERSON, J.: This appeal is from an order denying the defendant's motion to vacate an attachment, which motion was made on the ground " that the facts stated in the papers upon which said warrant of attachment was granted, afforded no basis for an attachment." It is recited in the warrant that it duly appeared to the satisfaction of the judge granting it that a cause of action exists in favor of the plaintiff against the defendant for the recovery of $39,390, with interest thereon, "as damages for the wrongful conversion and misapprehension of money in the foregoing amount by this defendant and belonging to and being the property of this plaintiff as aforesaid," and that the defendant is a foreign corporation. *Sic. FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. It thus appears that the ground upon which the attachment was granted was, that the action was specifically for a misappropriation constituting a conversion of money. The allegations of the complaint may be regarded as declaring upon such a cause of action and affidavits presented on the application are to the same effect. It is, among other things, alleged in the complaint that the Manhattan Fire Insurance Company of New York, of which the plaintiff is the receiver, had on deposit in the defendant bank in the State of Ohio, a certain sum of money; that the president and cashier of the Manhattan Fire Insurance Company wrongfully made a check payable to the order of the defendant; that the drawers signed the check as president and cashier of the insurance company, and it was drawn on a fund deposited to the credit of the insurance company in that bank; that thereupon that check was delivered to the defendant at its banking house, and the defendant wrongfully appropriated and charged the same against the account and deposit of the Manhattan Insurance Company, and wrongfully credited the amount of the check to and in cancellation and extinguishment and payment of an individual obligation and indebtedness of the persons who signed the check. It is also alleged that the officers of the defendant had full knowledge of the misappropriation of the amount of the check by the officers of the Manhattan Fire Insurance Company, and that a demand has been made upon the defendant for the amount. There can be no doubt of the right of the plaintiff, the facts alleged being proven, to recover the amount of the misappropriated money (Gerard v. McCormick, 130 N. Y. 261; Rochester & C. T. R. Co. v. Paviour, 164 id. 281); but it is urged by the defendant that an action for conversion will not lie; that the relation existing between the Manhattan Fire Insurance Company and the defendant was, upon the papers, simply that of debtor and creditor, which is the ordinary relation existing between a bank and its depositor. There are, however, allegations in this complaint and there are facts stated in the affidavits, upon which the attachment was granted, which indicate that a somewhat different relationship existed between the Manhattan Fire Insurance Company and the defendant. It is stated in the complaint that the money on deposit with the defendant was a fund which was the property of and belonging to the said Man |