18 N.Y.S. 84 | N.Y. Sup. Ct. | 1892
The real question in this case is as to whether the complaint is one in tort purely and simply, or one for money had and received. The action was brought by the executor and executrix of one Cohn, who during his life-time had employed the defendant to collect from one Godfrey Fischer a "certain sum of money. Apart from the formal allegations, the-complaint sets forth that the defendant, as agent, being employed to collect, the money, did, on the 9th day of November, 1887, so collect it, “and wrongfully and unlawfully wholly refused, failed, and neglected to pay the same,, or any part thereof, to the said Cohn, although the same was demanded, but wholly misappropriated and misapplied the said sum, etc., to his own use," and judgment is asked for the specific amount and interest. In the answer the employment and collection of the amount are admitted, but it is set up-that at the time of the original employment the defendant was to receive as-compensation for his services 25 per cent, of the amount of the claim, and that, afterwards it was agreed between Cohn and the defendant the compensation of the latter should be increased to 50 per cent, of the claim. On the trial the plaintiff introduced the mere formal proof .showing the right of the plaintiffs, as the representatives of Cohn, to sue, and rested. Thereupon a motion, was made to dismiss the complaint, which was denied. The defendant was then put upon the stand, and was asked certain questions as to the agreement, between himself and Cohn, which were properly excluded, and, nothing being slio.wn as to the substance of the defense, the court directed a verdict fertile plaintiff for the full amount claimed. The contention of the defendant is that there was a total failure of proof of the cause of action alleged in the complaint, and that either the complaint should have been dismissed, or the-defendant allowed to go to the jury “on the question of embezzlement.” But, as we look at this complaint, the gist of the action is not the “misappropriation and misapplication" of the money collected, but the not paying-it over. It is true, the words referred to are coupled with the general statement of facts, and characterize the conduct of the defendant; but are they really the ground of the action ? Is the defendant sued for the misappropriation of the money, or for not paying it over after demand; and are the words, “misappropriated and misapplied to his own use,” anything more than a. mere statement of a legal conclusion which necessarily follows in every case where a person, after demand, retains money belonging to another, and which ox aqua et bona he should have restored on demand, having no excuse for retaining it? The words above quoted are merely surplusage. There is noth