
    Robert Fyfe, Appellant, v. Henry W. Jackson, Respondent.
    
      Conversion^-when an action, for the proceeds of goods sold by an agent on commission, is on contract and, not for conversion — allegations as to conversion regarded as surplusage.
    
    The complaint in an action alleged that the plaintiff consigned to the defendant certain bicycles for sale on commission, the title to which was to remain in the consignor, and that the proceeds of sale, less the defendant’s commission, were to be the property of the plaintiff; thathhe defendant sold the bicycles at not less than the prices agreed upon and received the proceeds, part of which became the property of the plaintiff; that he paid over to the plaintiff a portion of the proceeds, but wrongfully and willfully failed and refused to pay over the balance, amounting to §156.36, and wrongfully converted the moneys collected to his own use, and failed to account or to return the bicycles. •
    It demanded judgment against the defendant “for §156.36 proceeds, besides the costs.”
    
      Eeld, that the complaint stated a cause of action upon contract and not one in conversion—especially as this was the practical construction placed upon it by the plaintiff in the testimony given by him upon the trial;
    That the allegations in the complaint, that the defendant wrongfully converted the moneys' collected and that he failed to account or to return the bicycles, did • not make the action ex delictu, but might be disregarded as surplusage.
    Appeal by the plaintiff, Bobert Fyfe, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, fourth district, rendered on the 26tli day- of J uly, 1900, upon the decision of the court dismissing the plaintiff’s complaint.
    The complaint in this action alleged, among other things:
    “ Second. That during the year 1898 the plaintiff consigned, and caused to be consigned and delivered to the defendant certain bicycles for sale on commission at prices not less than a certain sum agreed upon; any excess received by the defendant over and above said amount to be retained by the defendant as and for his commissions for selling the same ; the proceeds of. such sales after deducting the commission's, to be accounted for by the said defendant, and to be and remain the property of the consignor. * * *
    “ Fourth. That as to all of said consignments * * * the title thereto was not to vest, in the defendant, but was to remain the property of the consignor.
    “ Fifth. That in all sales thereof the proceeds, after deducting the. commissions, were to be and remain the property of the consignors.
    
      “ Sixth. That as the plaintiff is informed. and believes the defendant disposed of all of said bicycles which were consigned to him. * * *
    “ Seventh. Upon information and belief that thereafter the defendant sold and disposed of all of said bicycles at prices not less than the prices agreed upon, and collected and received sums therefor amounting to or in excess of the sum of three hundred twenty-two dollars and fifty cents ($322.50), which moneys up to the sum of said $322.50 became the property of this plaintiff, which said moneys the defendant collected and received in a fiduciary capacity and except, as hereinafter stated, wrongfully, fraudulently, unlawfully and wilfully converted and appropriated the same to his own use, and failed, neglected and refused to account therefor to the plaintiff, in fraud to the rights of this plaintiff.
    
      “ Eighth. That plaintiff has duly demanded the payment of the said proceeds, and that defendant has wilfully and wrongfully failed, neglected and refused to pay the same or to make return of said bicycles, except that he has accounted for and paid and turned over to the plaintiff on account of the transactions in this complaint alleged the sum of one hundred sixty-five dollars and fourteen cents ($165.14) and no more; and that he still wilfully and wrongfully fails, neglects and refuses to account and pay over the balance of said proceeds, the property of this plaintiff, or to return said bicycles, to the plaintiff’s damage in the sum of one hundred fifty-six dollars and thirty-six cents ($156.36).
    “ Wherefore, plaintiff demands judgment against the defendant for $156.36 proceeds, besides the costs and disbursements of this action.”
    
      George Tiffany, for the appellant.
    
      James H. Scrimgeour, for the respondent.
   Jenks, J.:

The Municipal Court justice gave judgment for the defendant, dismissing the complaint on the ground that a case of conversion had not been made out and that plaintiff should have brought his action on contract. I think that this action is on contract. The plaintiff alleges that he consigned to the defendant certain bicycles for sale, and that the proceeds of the sales, less the commission, were to be the property of the consignor. Plaintiff further pleads that the defendant sold said bicycles at prices not less than the prices agreed upon, and collected therefor a sum in excess of $322, which moneys, up to $322, became the property of the plaintiff. Plaintiff alleges that he had duly demanded the payment' of the proceeds, and that defendant had wrongfully and willfully failed, neglected and refused to pay the same except $165.14, and that he wrongfully and willfully fails to pay over the balance of the proceeds, the property of this plaintiff, to plaintiff’s damage $156.36, and concludes: “ Wherefore, plaintiff demands judgment against the defendant for $156.36 proceeds, besides the costs,” etc. The plaintiff was asked this question by his counsel: “ Q. I want you to tell the court how many cycles, if any, did the Beading people send during this period to the defendant, the proceeds of which you seek to recover this morning ? ” And again : “ Q. So you seek to recover the proceeds of sixteen ? A. Sixteen, altogether. * * * Q. What amount tif money should'you receive as returns for the sixteen wheels? A. $322.50. Q. How much has the defendant turned over to you, if anything, for the $322.50 ? A. Turned over, irrespective of wheels, $165.14. Q. Then there , is how much .remaining still that he did not account for or turn over to you as proceeds of the sale ? A. $157.36. * * * Q. You claim that amount still remains unpaid? A. I claim that amount.” The Court: “The proceeds-were to be your property ? A. They were my property and the proceeds were mine too. * * * Q. Did you' finally find out he sold all the wheels ? A. He admitted selling all except those he returned to me. * * * Q. Then did you demand yóur money ? A. I demanded the money. Q. Have you made repeated efforts and demands on him for that money ? A. Constantly.” On cross-examination this question was put to plaintiff: “ Q. These goods were sent to him and he had absolute power of sale of was he merely, as you say, to return the proceeds to you — did he have absolute power to sell ? A. He was authorized to sell at certain prices. * * * Q. And from time to time he sold the goods by your consent? A. Yes, and he turned the proceeds to me. * * * Q. You never consented-—-that makes $322.50, and he paid you, as you claim, $165 ? A. Yes, sir.”

' Thus the complaint and the practical construction thereof by the plaintiff, as shown by his testimony, shows a canse of action for the proceeds received for sales. In the language of the Court of Appeals in Rosenberg v. Block (118 N. Y. 329, 334): “ The plaintiffs do not attempt to disaffirm the sale arid to make the defendants liable for breach of instructions or for conversion, but, ratifying the sale, they seek to recover the proceeds received. (Scott v. Rogers, 31 N. Y. 676.; Laverty v. Snethen, 68 N. Y. 522.) Thus the action is for money had and received,” etc. I am not unmindful of the fact that the plaintiff alleges that the defendant wrongfully converted the moneys collected and that he fails to account or to retwrn the bicycles ; hut these allegations do not make the action ex delictu, but, in this case, are mere surplusage. (Segelken v. Meyer, 94 N. Y. 473, 484.)

The judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  