
    Charles A. Robinson, Respondent, v. William F. Stanley, Appellant.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Principal and agent — Mutual rights, duties and liabilities — Remedies as between the parties—Actions against agent for property or account— When action for conversion not maintainable.
    Pleading — Matters relating to pleadings generally — General rules — Pleading matters of evidence.
    Where an agent owes no duty to pay over specific moneys to his principal when received, a cause of action for a balance due to his principal is one arising upon contract.
    Where the only allegation of a complaint in an action against an agent for the alleged conversion of money received for his principal bearing upon defendant’s indebtedness or failure to account is “ that the books * * * showed that the defendant had taken from said business and wrongfully converted to his own use ” a specific sum, "the complaint, unless amended, should he dismissed as tendering no issue; such allegation amounting to no more than a statement of the existence of evidence to prove a fact and not an allegation of the fact.
    Appeal by the defendant from a judgment of the City Court of the city of Few York, entered in favor of the plaintiff upon the verdict of a jury and also from an order denying defendant’s motion for a new trial.
    
      Peter B. Hanson. (Gustav Lange, Jr., of counsel), for appellant.
    George W. Thomas, for respondent.
   Bischoff, J.

The complaint proceeded for a conversion of moneys by the defendant, when employed as an agent by the plaintiff, and the allegations disclosed the fact that the agency was of a very general character supporting an obligation to account, but involving no duty upon the agent’s part to pay over specific sums when received. Under these circumstances a cause of action growing out of the agent’s possession of a balance due to his employer would appear to be one arising upon contract and not for conversion. See Parmenter v. Am. Box Co., 44 App. Div. 47.

We do not place our determination of the appeal on this ground, however, but it is referred to because involved upon an amendment of the complaint which must precede any recovery by this plaintiff.

Error, requiring reversal of the judgment, is apparent from the denial of the motion to dismiss the complaint for insufficiency of substance, there being no allegation of fact in the pleading to support the defendant’s liability to the plaintiff. The only averment bearing upon the defendant’s indebtedness, or failure to account, is that the books of said business showed that the defendant had taken from said business and wrongfully converted to his own use the sum of $1,299.” This obviously amounts to no more than a statement of the existence of evidence to prove a fact, and is in no sense an allegation of the fact itself for the purpose of tendering an issue.

Ho amendment of the complaint having been sought or directed, the motion for a dismissal upon the ground that it failed to state a cause of action should have been granted, and the judgment is, therefore, reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  