Bartlett v. Sutorius — 9 N.Y.S. 2

Majority

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Bartlett v. Sutorius.

(Supreme Court, General Term, First Department.

January 10, 1890.)

Headnote

Arrest in Civil Cases—Vacation of Order.

Where defendant has been arrested for conversion of money received by him “in a fiduciary capacity, ” the order of arrest will be vacated unless the complaint alleges that the money sued for was received by defendant in a fiduciary capacity.

Appeal from special term, New York county.

Action by Stephen L. Bartlett against Edward Sutorius, for the proceeds of certain sales alleged to have been made by defendant as plaintiff’s agent. An order of arrest was granted on the ground that defendant converted money received “in a fiduciary capacity,” as agent of plaintiff. The complaint alleged that plaintiff shipped goods to defendant, his agent, to sell, and that defendant collected the proceeds, and failed to account therefor, but converted such proceeds to his own use. The complaint did not allege that defendant

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received the money in a fiduciary capacity, nor did it allege any further facts in relation thereto than those stated. A motion to vacate the order of arrest was denied, and defendant appeals. For former report, see 6 H. Y. Supp. 406.

Argued before Van Brunt, P. J., and Bartlett, J.

Austen G. Fox, for appellant. Daniel D. Sherman, for respondent.

The order appealed from should be reversed, and the order of arrest vacated, without costs.