Opinion
December, 1893.
Marshall P. Stafford, for plaintiff (appellant).
Delos McCurdy, for defendant (respondent).
It is the indisputable law of this state that a plaintiff cannot, upon allegation of one cause of action, recover on another, "unless the defendant, by his silence or conduct, acquiesced in the trial of the new and different cause of action." Reed v. McConnell, 133 N.Y. 425, 433; Douglass v. Ferris, 138 id. 204.
In the case before us, at the close of the evidence, the defendant moved to dismiss the complaint, "on the ground that no cause of action has been established as alleged in the complaint." The contention of the respondent is, that the cause of action propounded in the complaint is for conversion, and that the proof exhibited only a right of recovery upon contract.
In substance, the complaint alleges an agreement by which the defendant retained the plaintiff to prosecute a litigation and engaged to allow him one-half of any sum collected after suit brought; avers the commencement of an action, the compromise of the case by the defendant, the receipt by him of $4,000 on such settlement, and his refusal to pay over to plaintiff his one-half of that amount. The judgment demanded is for $2,000, with interest. The cause of action so stated is, in legal effect, for money had and received, and the evidence sufficiently sustains it. Rothschild v. Mack, 115 N.Y. 1, 8: Roberts v. Ely, 113 id. 128; Roberts v. Ellwood, 116 id. 651.
But the defendant objects that because the complaint charges the settlement to have been made "in fraud of plaintiff's rights," and "the defendant fraudulently misappropriated" the money, the action is for conversion. Unquestionably, the complaint shows a right of recovery on contract, and the allegation of fraud does not of necessity convert the claim into an action for tort. Sparman v. Keim, 83 N.Y. 245; Graves v. Waite, 59 id. 156; Conaughty v. Nichols, 42 id. 83; Greentree v. Rosenstock, 61 id. 583; Vilmar v. Schall, Id. 564; Byxbie v. Wood, 24 id. 607.
The respondent urges, however, that an order of arrest against him was obtained on the ground of injury to property, but the discrepancy of statement in the order and the complaint, while available perhaps on a motion to vacate the arrest, is inoperative to change the nature of the action as apparent upon the pleadings.
Our opinion is that the learned trial judge misconceived the complaint in construing it to be exclusively for tort, and since its sufficiency to support an action of contract is not contested, we conclude that its dismissal was error.
Hitherto we have considered the case as presented by the respondent, namely, that the evidence authorized a recovery upon contract only. It is a question, however, whether the fraudulent misappropriation of the money as charged may not constitute a cause of action for conversion, and, if so, then it is immaterial in what aspect the complaint be taken, since in either the recovery would be secundum allegata. Gordon v. Hostetter, 37 N.Y. 99, 104.
Judgment reversed and new trial ordered, costs to abide the event.
BISCHOFF, J., concurs.
Judgment reversed, new trial ordered, costs to abide event.