Second Department, April, 1909. [Vol. 132. Div. 106; Harris v. Baltimore Machine & Elevator Co., 112 id. 389). The judgment should be reversed and the demurrer sustained, with leave to plead over. HIRSCHBERG, P. J., BURR, RICH and MILLER, JJ., concurred. Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plead over on payment of costs. MARY MORIARTY, Respondent, v. THE CITY OF NEW YORK, Where in an action against a municipality to recover for personal injuries received by tripping over a stone left in the public streets, it appears that the stone for a period of two weeks had been moved about in various positions within a circle of six feet radius, the jury may find that the city had constructive notice of the obstruction. A judicial decision must be tested and interpreted by the facts stated in the opinion, not by those which may be discovered from an inspection of the record. APPEAL by the defendant, The City of New York, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of December, 1908, upon the verdict of a jury for $556, and also from an order entered in said clerk's office on the 26th day of December, 1908, denying the defendant's motion for a new trial made upon the minutes. The action is for damages for negligence. The plaintiff tripped on a loose fragment of stone lying on the sidewalk at a street corner. It was about 18 inches long, 12 wide and 3 or 4 thick. It was a corner of a flag of the sidewalk there which city employes had recently broken off in setting a hydrant by the curb. They left it there close up to the hydrant. During two weeks it remained App. Div.] Second Department, April, 1909. there, but not in the same exact spot. It was shifted from place to place, from 6 inches to about 6 feet from the hydrant, on the sidewalk and in the roadway, within a circle of a radius of about 6 feet from the hydrant as the centre. Boys moved it about and used it to jump from. James D. Bell [Francis K. Pendleton with him on the brief], for the appellant. A. L. Pincoffs [Edward D. O'Brien with him on the brief], for the respondent. GAYNOR, J.: The time that the stone was being moved about on the street, two weeks, was ample to base a finding of constructive notice to the city on. It cannot be held, as the learned counsel for the appellant urges, citing the recent case of Orser v. City of New York (193 N. Y. 537) as authority, that every time the stone was shoved 6 inches, or a foot, or 6 feet, to a new position, a new question of constructive notice, dating from that time, arose, and that as there is no evidence to show how long it was on the precise spot where it was when the plaintiff tripped on it, there is no evidence of a sufficient length of time to base such notice on. It is evident that the whole time during which the stone was being shoved about from one spot to another within the small space in which it was all the time, i. e., within a circle of a radius of about 6 feet, has to be considered in establishing constructive notice to the city, and not merely the time elapsing after it was put on the precise spot where it was when the plaintiff tripped on it. It is true that it is said in the opinion in the Orser case that the law of constructive notice could not be applied to the plaintiff's case "unless there was evidence tending to show the presence of the stone in the precise place where she fell over it" long enough to impute to the city officials notice that it was there. But it is also said there that the evidence showed that the stone had been in the "general locality" for two weeks, and that it had been removed "to the neighborhood of the telegraph pole", near which pole the plaintiff was hurt. This phrase "general locality", and word "neighborhood", imply a considerable territory, and the removal of the stone from the place where it was to Second Department, April, 1909. [Vol. 132. another neighborhood, namely, the "neighborhood" in which the telegraph pole was. They cannot be understood in careful legal statement, if even in poetical or oratorical license or looseness, as describing a circle on a street of a diameter of 12 feet. We are told, however, that if the record of that case be looked into it will be found that the portable stone that caused the accident there was also all the while within a 12 foot circle, instead of from place to place in a territory large enough to be called a "general locality or a "neighborhood"; but the decision must be tested and interpreted as based on and applicable to the state of facts stated in the opinion. The judgment should be affirmed. Present WOODWARD, JENKS, GAYNOR, BURR and RICH, JJ. Judgment and order unanimously affirmed, with costs. ROBERT STRAHL, as President of the BROOKLYN HEBREW DISPENSARY SOCIETY, Respondent, v. JACOB FINK, Appellant. Second Department, April 23, 1909. Money had and received -- negligence no basis of recovery. Where the treasurer of an unincorporated association received a worthless check from his predecessor in office for the sum which he should have turned over, and having never collected the check, reported the amount as cash on hand, he cannot be held as for money had and received, although the association sustained loss through his negligence. APPEAL by the defendant Jacob Fink, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of April, 1908, after trial before the court without a jury. Morris Walzer [Edward E. Rosenblume with him on the brief], for the appellant. Bernhard Bloch, for the respondent. App. Div.] Second Department, April, 1909. This action is brought by an unincorporated association against its treasurer for money had and received, and the plaintiff has recovered. It is conceded that the money sued for was never in the possession of the defendant, but is represented by a worthless check given to him by his predecessor in office, and which he reported to the association as cash on hand. This check did not discharge the liability, of the former treasurer to the association for the money in his hands; it was never paid over by him. Proof that the plaintiff has sustained loss or damage through the negligent acts of the defendant is not sufficient to maintain an action for money had and received. (National Trust Co. v. Gleason, 77 N. Y. 400.) The judgment must be reversed and a new trial ordered, costs to abide the event. WOODWARD, JENKS, GAYNOR and BURR, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. LAWRENCE F. CARROLL, Respondent, v. GEORGE W. CHAUNCEY, Appellant. Second Department, April 23, 1909. Money had and received — contract construed - facts not justifying recovery. Action by the bondsman of one who had obtained money from a bank by forgery to recover against the president of the bank on an alleged agreement that a sum of money contributed by the plaintiff to bring back the forger who had absconded, had been expended in locating the fugitive and not in bringing him back. Evidence examined, and held, that the contract was not made with the president of the bank as an individual and that under the agreement the money was to be expended in locating the fugitive as well as in bringing him into the country. APPEAL by the defendant, George W. Chauncey, from a judg ment of the Municipal Court of the city of New York, borough Second Department, April, 1909. [Vol. 132. of Brooklyn, in favor of the plaintiff, rendered on the 12th day of March, 1908. John J. Kuhn, for the appellant. James F. Lynch [Daniel E. Lynch with him on the brief], for the respondent. MILLER, J.: In the spring of 1904 one Forbes was arrested on the complaint of an officer of the Mechanics' Bank of Brooklyn, charging him with obtaining money from the bank by means of forged checks. Bail was fixed in the sum of $5,000. The plaintiff, though a stranger to him, became one of his bondsmen, and he was released. Shortly thereafter he absconded. The bank employed Pinkerton detectives to locate the fugitive. It was learned that his wife was about to sail for Buenos Ayres, and arrangements were made for a detective to sail at the same time. At about that time a conversation occurred at the bank between the defendant, the president of the bank, and the plaintiff. The plaintiff's claim is that, as a result of that interview, he agreed to contribute to the defendant the sum of $500 to be used by the latter in "bringing back" the fugitive; and that he subsequently did contribute said sum, but that it was used toward defraying the expenses incurred in locating the fugitive and not in bringing him back. The defendant's position is that the money was advanced to the bank, not to the defendant individually, and that it was used for the purposes intended. The overwhelming weight of the evidence supports the defendant's contention. It cannot be doubted that the plaintiff knew that the defendant was the president of the bank and was acting as its representative. He knew the charge on which Forbes had been arrested, he went to the bank uninvited, unless his statement that he met some man in the street who told him to go there is to be credited, and the letter, calling upon him to pay the $500 as he had agreed to do, was signed by the defendant as president of the bank. Although the plaintiff tried to make it appear that Forbes had already been located when that interview occurred, the evidence plainly established that he had not been located, except as his location was suspected from the supposed destination of his |