73 N.Y.S. 285 | N.Y. Sup. Ct. | 1901
The plaintiff alleges that he consigned to the defendant certain briarwood; that the defendant sold the same and received therefor $680.80 in money and an instrument in writing for $2,326.38; that the plaintiff demanded the proceeds thereof from the defendant, who refused to pay over the sum collected or deliver over said instrument, but unlawfully converted the same to his own use to the plaintiff’s damage, $3,007.18. There is no allegation that said instrument was made to the plaintiff, was ever in his possession or that he had any proprietory interest therein. The defendant pleads two counterclaims in the nature of recoupments for expenses incurred by him upon the -consignments in question. The plaintiff demurs upon the ground that the action is in form for the conversion of money, while the -counterclaims arise on contract, for moneys paid out by the defendant for the plaintiff’s benefit and are not available in an .action for tort. Chambers v. Lewis, 2 Hilt. 591. Aside from the fact, that the counterclaims arise out of the same contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, and are, therefore, permissible, the action is really -one on contract — not in tort — and the counterclaims on contract are properly pleadable in defense. It is conceded that the •defendant was authorized to sell the consigned property for the plaintiff placed it in his hands for the express purpose of sale. The omission of the defendant to pay over the moneys received by him as a factor, agent or trustee in the course of his agency or
Judgment accordingly, with costs.