Bartlett v. Sutorious — 32 N.Y. St. Rep. 1127

Majority

p. 1127

Stephen L. Bartlett, App’lt, v. Edward Sutorious, Resp’t.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Pleading — Complaint—Money had and received.

A complaint alleging that plaintiff shipped goods to defendant, then his agent, to sell for cash or thirty days credit; that defendant sold the same and collected the proceeds; and that he has neglected and refused to pay over the same, but has converted them to his own use, states a good cause of action, although not for money received in a fiduciary capacity.

Appeal from judgment dismissing the complaint.

The complaint alleged that plaintiff shipped certain goods to defendant, then his agent at New York, to sell for cash or on thirty days’ credit; that defendant received and sold said goods, except a portion which was returned, and collected the proceeds of said sales; that he has neglected and refused to render an account or pay over such proceeds, and has wrongfully converted the same to his own use.

An order of arrest granted in the action was vacated by the general term on the ground that the complaint did not allege the receipt of such moneys in a fiduciary capacity. 29 N. Y. State Rep., 60. The complaint was dismissed on the authority of that decision.

D. D. Sherman, for app’lt; Davison & Chapman, for resp’t

The learned judge in the court below evidently mistook the purport of the decision heretofore made tin this case upon the application to vacate the order of arrest. All that the court decided upon that appeal was that, as the complaint

p. 1128

did not contain tlie allegations required by § 549 of the Code, the order of arrest could not be sustained. It did not decide that the complaint does not state a good cause of action. On the contrary, the'complaint contains a cause of action, but not for money received in a fiduciary capacity. The learned court, therefore, erred in dismissing the complaint, and the judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Brady and Daniels, JJ., concur.