In his complaint, the plaintiff alleged that while in his employment, the defendant unlawfully took and converted to his úse, certain moneys to him, the plaintiff, belonging. The evidence adduced upon the trial tended only to show that for and during his absence from the country, the plaintiff had committed his business and its management to the defendant, upon the understanding, according to the plaintiff, that his compensation was to be one-half of the profits, but according to the defendant, without any understanding as to compensation, and that, from time to time, the defendant had drawn from proceeds of sales small sums, together amounting to the sum for which judgment was given. Even if this might have supported an action other than for conversion, it did not show that intermeddling with and appropriations of the property of another, which the law treats with the severe consequences of personal imprisonment, and requires (section 1386, Consolidation Act), that that liability be stated, as here, in the judgment. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Freedman, P. J., concurs; Leventritt, J., concurs in the result.
Judgment reversed and new trial ordered, with costs to appellant to abide event.