
    Marshall P. Stafford, Appellant, v. Charles C. Azbell, Respondent.
    (New York Common Pleas—General Term,
    May, 1894.)
    Where an attorney takes a case upon a contingent fee of a share in the sum realized, the attorney and his client are tenants in common of the fund realized, and, therefore, where the client settles the action without the knowledge or consent of the attorney, the latter cannot maintain an action of conversion for his portion of the sum received by the client upon such settlement.
    Appeal from a judgment entered on the dismissal of the complaint at trial term.
    The complaint alleged that the plaintiff was employed by the defendant to collect a claim against a railroad company under an agreement that he was to have one-half the sum collected in case an action was brought; that such action was brought; that defendant settled and released the claim without his knowledge and received $4,000 therefor, and concealed the fact of such settlement, and fraudulently misappropriated to his own use the $2,000 which belonged to plaintiff. On the trial plaintiff was required to elect whether he would proceed upon contract or in tort, and thereupon elected to proceed in tort on the theory of a conversion.
    
      Marshall P. Stafford, for appellant.
    
      Delos McGurdy, for respondent.
   Per Curiam.

We do not think it necessary to take this case under further advisement. It seems to us that the election by the plaintiff of a canse of action in tort made it necessary for him to show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion. There is no pretense that there was a demand of this money made at any time. .Besides, it is admitted that there was a reciprocal interest in the money, and hence they were tenants in common of it, and an action for conversion cannot be maintained under such circumstances. McMahon et al. v. Rauhr, 47 N. Y. 67 et seq.

The judgment must be affirmed, with costs.

Present: Bookstaver, Bischoff and Pryor, JJ.

Judgment affirmed, with costs.  