and 106 New York State Reporter of the balance of the purchase money, admitted that he had misappropriated the money, and applied it to his own use. The court instructed the jury that the defendant, having obtained the money to be applied to a particular purchase, and then fraudulently and deceitfully applied it to his own use, was guilty of embezzlement under the laws of that state. The conviction was affirmed, the court holding that, "even though the property was intrusted to the broker for an illegal purpose, it was no defense to an indictment for embezzlement"; citing Com. v. Smith, 129 Mass. 104. In New York the former crimes of embezzlement and false pretenses are now embraced within the term "larceny" as defined by section 528 of the Penal Code. In the present instance the $167 placed in the hands of the defendant by the complainant made him the debtor of the latter to that amount, and gave the depositor the right to recover by civil action a return of the deposit, or to call upon the defendant for an accounting. The fact that the defendant, after he had the money in his possession, made misstatements as to alleged purchases or sales does not constitute a crime, for the complainant parted with nothing on the faith thereof, did not alter his position in consequence, and was not in any manner deceived to his pecuniary injury. It is not charged, nor can it be inferred from any allegation of the complaint, that the $167 deposited with the defendant paid for, or was to pay for, 10 shares of Northern Pacific and 20 shares of Brooklyn Rapid Transit stock, so as to make the complainant the owner thereof, or the defendant a bailee with respect thereto; or that any possible wrong regarding any such stock was done to the complainant. No demand and refusal to pay or deliver over are alleged. Breach of contract is actionable, not indictable; but even a breach, the foundation of every civil action, is not pleaded. Every essential to a criminal offense should be set forth with particularity (Barb. Crim. Law [2d Ed.] 519, 520), and not left to inference, which favors innocence, and never lends its aid to establish guilt, unless the facts charged unerringly point that way. Tested by the settled rules of criminal procedure, the complaint here is so inartistically drawn that it may well be termed a nondescript. The complaint fails to set forth any charge of which a criminal court has jurisdiction, and the attempt to make a criminal offense of the transaction looks like an effort to use the criminal courts as a means of enforcing an obligation the remedies respecting which belong exclusively to the civil courts established for the purpose. For these reasons the magistrate had no authority to commit the defendant to await the action of the grand jury, but should have discharged him at once. As the defendant is unlawfully deprived of his liberty, the writ must be sustained, and the defendant discharged from further restraint. (64 App. Div. 246.) YOUNG V. HOWELL. (Supreme Court. Appellate Division, Third Department. September 13, 1901.) 1. ATTORNEY AND CLIENT-COMPENSATION AND LIEN OF ATTORNEY-STATUTES. Under Code Civ. Proc. § 66, providing that the attorney who appears for a party has a lien on his client's cause of action, which attaches to a verdict or judgment in his client's favor, which cannot be affected by any settlement between the parties, it was error to grant an order permitting the plaintiff's attorneys to prosecute an action to final judg ment to enforce their lien after a settlement between the parties, where the plaintiff was solvent, and there was no intimation that he did not intend to pay his attorneys. 8. SAME SETTLEMENT BY PARTIES-Fraud. The fact that a defendant, by fraud, induced the plaintiff to settle an action, cannot be considered on a motion by the plaintiff's attorneys to be allowed to prosecute the action to final judgment to enforce their lien, the same being irrelevant to the inquiry. Appeal from Albany county court. Action by Bertram L. Young against Fred S. Howell. From an order permitting plaintiff's attorneys to prosecute the action to judgment after settlement, to enforce their lien for costs, the defendant appeals. Reversed. Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ. John A. Stephens, for appellant. H. & W. A. Hendrickson, for respondent. PARKER, P. J. The plaintiff was primarily liable to his attorneys for their services in commencing and prosecuting this action, and the lien which is given them by section 66 of the Code is given as a security only for such demand. The court will enforce such lien whenever it is necessary to do so in order to protect the attorney's legal claims, but the client still has the unrestricted control of the subject of the action and the terms upon which the settlement may be made, and such a settlement is not affected by such section unless it operate to the prejudice of the attorney's claim. Such seems to be the rule as enunciated in the following cases: Lee v. Oil Co., 126 N. Y. 579, 27 N. E. 1018; Poole v. Belcha, 131 N. Y. 200, 30 N. E. 53; Peri v. Railroad Co., 152 N. Y. 521, 46 N. E. 849. In the case at bar it appears that the plaintiff is solvent, and abundantly able to pay the costs to which his attorneys are entitled. Nothing appears in the case showing that security for their demand of $16 is needed. The plaintiff, having settled with the defendant for a sum less than his full demand, must now settle with his attorneys for their services; and there is no intimation in the record that he cannot or will not do so. It is not claimed that there was any collusion in such settlement with a view to prejudice the attorneys, and, inasmuch as plaintiff is not only liable, but clearly able, to pay them, the enforcement of their lien is not necessary. They are in no way prejudiced without it. It is urged upon us that the defendant deceived and defrauded the plaintiff into making such settlement, but this application is not and 106 New York State Reporter made on behalf of plaintiff to vacate such settlement on the ground of defendant's fraud. If it were, a different inquiry would be presented; but, as it is clearly a motion to enforce the attorneys' lien given by section 66, and nothing more, it must be controlled by the rules above stated. The order is reversed, with $10 costs and disbursements. concur. (64 App. Div. 254.) All DICKINSON et al. v. FIRST NAT. BANK OF CHAMPLAIN et al. (Supreme Court, Appellate Division, Third Department. September 4, 1901.) ASSIGNMENT for Benefit of CREDITORS-TRUST FUNDS-INSURANCE PREMIUMS. Where a firm of insurance agents collected premiums due the company and deposited them in a bank in the name of the firm for the purpose of remitting them to the company, and, after remitting checks against the deposit, made an assignment for the benefit of creditors before the checks could be presented to the bank for payment, the money, being held in trust and capable of identification, did not pass to the assignee. Action by Thomas H. Dickinson and another against the First National Bank of Champlain and another. Submission of case on an agreed statement of facts. Judgment ordered for plaintiffs. Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ. Everest & Signor, for plaintiffs. John H. Crook, for defendant First Nat. Bank of Champlain. CHASE, J. On January 26, 1901, and for several years prior thereto, Charles Deal and Elmer H. Deal were partners doing business under the firm name of Charles Deal & Son as fire insurance agents at Champlain, N. Y. On said 26th day of January said Charles Deal and Elmer H. Deal individually and as such partners made a general assignment for the benefit of their creditors, which assignment was duly filed in the proper office on January 28, 1901, and the assignee in said 'assignment named duly qualified and entered upon the discharge of his duties as such assignee. It had been the practice of the said assignors to make deposit of the net insurance premiums collected by them in the First National Bank of Champlain, in the name of Charles Deal, and then remit the same by check to the companies or associations for which they were respectively collected. Within a few days prior to said assignment the assignors collected $228.39, exclusive of their commissions, from various persons for policies issued by the Westchester Fire Insurance Company, and $66.46, exclusive of their commissions, for policies issued by the Greenwich Fire Insurance Company. On said 26th day of January, but prior to the execution of said assignment, said assignors deposited said amounts in said bank in the name of Charles Deal, and issued checks for said amounts payable to said companies respectively, and duly forwarded the same by mail. It is conceded: "That, under said assignors' firm contract with said Insurance companies, said net premiums belonged to the respective companies on whose policies they accrued, and were trust funds in the hands of their said agents, and were to be remitted to said companies monthly. That said firm deposited said moneys * under the name of Charles Deal for the sole purpose of remitting said sums by check to said insurance companies, respectively." The At and prior to the making of said assignment Elmer H. Deal was the duly appointed and acting local treasurer of the New York Mutual Savings & Loan Association at Champlain. It was his duty to receive and collect dues, payments, interest, and fines from members of said association, and remit the same, less his commissions, to the head office in New York. It is conceded that said moneys belonged to said association, and that they were held by said treasurer in trust for it. Shortly prior to said assignment said Elmer H. Deal collected from members of said association $143.10, exclusive of his commissions, and deposited the same in said bank in the name of Charles Deal for the sole purpose of remitting the same by check to said association; and forthwith, and on the 25th day of January, 1901, a check was drawn therefor to the order of said association, and duly forwarded by mail. After said checks were so mailed, said assignment was made and delivered. The assignors were and are insolvent. The checks were not presented to the bank for payment until after the delivery of said assignment, and the officers of the bank, having knowledge of the assignment, refused to pay said checks or either of them. The moneys so deposited by said assignors remain on deposit in said bank. claims of said companies and of said association to said amounts, respectively, have been duly assigned to the plaintiffs, but said bank refuses to pay the amounts to them. The plaintiffs ask that they be adjudged to be the owners of said amounts so held by said bank as aforesaid, and that said bank be directed to pay the same to them. The relation between the insurance companies and the savings and loan association, respectively, and the assignors, was that of principal and agent. The money collected was held as a trust fund, and the relation of debtor and creditor did not arise. It does not appear that any part of the money collected either for the companies or the association was ever mingled in any way with individual or other moneys of the assignors, except that the three trust funds were mingled in so far as they were united in one account in the bank, to be remitted to the owners thereof respectively. The record does not disclose that the assignors ever intended to or did misappropriate any of the moneys so collected. They proceeded in their usual course of business to remit the actual money collected to their principals, but, as the assignment was delivered before the checks were actually presented for payment, the account remained in the bank, the apparent property of Charles Deal. Although the account remained in the name of Charles Deal individually, it was so held for transmission only, and was the property of the corporations in whose favor the checks had been drawn, and for whom it had been collected by the assignors. Property and funds held in trust by an assignor at the time of a general assignment, and capable and 106 New York State Reporter of being identified, do not pass to an assignee. The identity and ownership of the money in controversy being conceded, there is but one thing for the court to do in the exercise of its jurisdiction over fiduciary relations, and that is to direct the funds so held by the bank to be paid over to the plaintiffs. Judgment ordered for the plaintiffs, without costs. (64 App. Div. 248.) All concur. PATRONS OF INDUSTRY FIRE INS. CO. v. HARWOOD. (Supreme Court, Appellate Division, Third Department. September 4, 1901.) INSURANCE-MUTUAL COMPANY-LIABILITY OF MEMBER AFTER CANCELLATION OF POLICY. Laws 1892, c. 690, § 267, provides that every member of a mutual Insurance company shall pay his proportionate share of all losses, and also a reasonable sum for expenses; and section 268 authorizes the directors to estimate the sum necessary to pay all losses, damages, and expenses for the current year, and to assess the same. Section 274 allows any member to withdraw at any time, by 10 days' notice, and paying his share of all claims, existing against the company, and surrendering his policy. Defendant became a member of a mutual fire insurance company organized under these laws, and, after having his policies canceled, paid an assessment for a loss sustained before the cancellation. The money paid on such assessment was partly used to defray the company's expense incurred after the date of the assessment. Another assessment was levied to pay the deficit on the loss, and, on defendant's refusal to pay, action was brought. Held, that defendant, by the cancellation of his policies and settlement with the company, ceased to be a member, and was not liable for any further assessments connected with such losses. Appeal from Franklin county court. Action by the Patrons of Industry Fire Insurance Company against Watson H. Harwood. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ. Charles A. Burke, for appellant. CHASE, J. The plaintiff is a co-operative insurance corporation organized pursuant to article 9 of chapter 690 of the Laws of 1892, known as the "Insurance Law." In November, 1897, the defendant was the holder of two policies of insurance issued by said company pursuant to said statute and the by-laws of said company. On the 3d day of November, 1897, the defendant received a notice of assessment dated November 1, 1897, on each of the policies held by him. The amount of the assessments was $9.78 and $26.45, respectively. He went to the office of the secretary of the company on November 5, 1897, and, not finding any one in charge of the office, returned, and on November 8th again went to said office. The secretary was then absent, but the office was in charge of the secretary's son. The defendant told the son that he surrendered his policies and delivered the same to him, and left them with him, |