p. 193John P. Holt et al., as Assignees, etc., Resp’ts, v. James P. Streeter, App’lt.(Supreme Court, General Term, First Department,Filed December 15, 1893.)Headnote
1. Arrest—Action in tort.A complaint, which alleges that defendant acted for plaintiff in a fiduciary capacity and, while so acting, collected, neglected and refused to pay over, money, states a cause of action in tort.
A plea in abatement for defect of parties, which fails to allege that the other parties are within the jurisdiction of the court, is bad.
Appeal from an order denying a motion to vacate an order of .arrest.
John A. Grow, for app’lt; Chas. K Rushmore, for res’pt
The complaint alleges that the defendant, as the agent of the plaintiffs, was intrusted by them with the sale of certain goods, with authority to collect and receive the proceeds of such sales, and to remit and pay over the same to the plaintiffs, when collected, and that he acted for the plaintiffs in a fiduciary capacity. It further alleges that while so doing he sold the goods, collected the moneys, and neglected and refused to pay over the proceeds. The grounds upon which the order of arrest was sought to be vacated were: First, that the action itself was one ex contractu; and, second, that the defendant was a member of the firm of James P. Streeter & Co., the other members being one Richardson and the defendant’s wife, and that the failure to join them shows a nonjoinder of necessary parties defendant, which is urged as a plea in abatement.
With respect to the first, it is clear from the substance of the complaint given that the action is one in which it is
p. 194to recover from the defendant the property of the plaintiffs which he has wrongfully converted, as alleged, to his own use. To the plea in abatement there are two answers. First, that the plea itself is bad, in that it fails to allege that the. other parties are within the jurisdiction of the court; and, secondly, because there being more than -one who had wrongfully converted the property of the plaintiffs, they would be at liberty to proceed against any one of the tort feasors. Apart, however, from this last consideration, we think it clearly appears that the transactions were with the defendant personally; but, whether this is so or not, the preponderance is not in favor of the defendant upon this question. Our conclusion is that the order was right, and should be affirmed, with $10 costs and disbursements.