
    Frederick Lange and Others, as Executors, etc., of Henry J. Schile, Deceased, Respondents, v. Romeo H. Schile, Appellant.
    First Department,
    January 11, 1907.
    Pleading — when complaint against attorney is on contract rather than in conversion — counterclaim for sums due on other contracts.
    It appeared that the plaintiff’s testator on going abroad had given a sum of money to his attorney to make payments on claims and liens against the testator’s property, then in litigation. On the testator’s return he left the balance of the money in the defendant’s hands without making a demand therefor.
    The plaintiffs, as executors, demanded the return of the money by the defendant, and in a complaint alleged that the defendant wrongfully and unlawfully refused to turn over and pay to the plaintiffs the said amount in his hands and "converted the same to his own use.”
    
      Held, that the complaint did not set out an action for conversion, but one for money had and received, and that, therefore, the defendant was entitled to set up counterclaims for sums due on other contracts.
    . Appeal by the defendant, Romeo H. Sehile, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 8th day of January, 1906, upon the verdict of a jury,'and also from an order entered in said clerk’s office on the 10th day of January, 1906, denying the defendant’s motion for a new trial.
    
      Edward W. 8. Johnston, for the appellant.
    
      George W. 8. Schulz, for the respondents.
   Laughlin, J. :

The defendant pleaded two counterclaims on contract, one upon a note and another, upon a bond, which were proved. These counterclaims exceeded the amount of the plaintiffs’ claim. The court 'subsequently dismissed the counterclaims and struck out the evidence ' given to sustain them upon the ground that this was an" action in conversion. The single question presented by the appeal is whether _ it is an action on contract or in conversion. If the former, the judgment should be affirmed, and if the latter, it must be reversed.

On a former appeal herein to this court (111 App. Div. 613) from an order dismissing defendant’s appeal from the taxation of costs upon the entry of this-judgment, we, in effect, held that the action was. on contract, and upon that theory the taxation of the costs by the clerk was modified by changing the allowance for all proceedings before notice of trial from twenty-five dollars, which the clerk had allowed upon tlib theory that it was an action in tort, and which is the allowance in such a case, to fifteen dollars, that being the the amount prescribed in actions on contract.

The action is to.recover $3,012.62. The contention that this moriéy was held in trust by the defendant for the plaintiffs and that the former converted it, was made and met upon the former appeal. It appears that the plaintiffs’ decedent, on his departure ■ for Europe in- June, 1900, delivered the sum of $4,317.74 to the defendant, who agreed to deposit the same in a trust company and to pay therewith certain claims arid- liens which had been filed against" real property owned by the decedent, then in litigation, in the event that the litigation should be terminated prior to the return of the decedent, the defendant agreeing-that upon the return of the decedent, if the litigation had not terminated, or if it had terminated and lie had not expended the moneys as authorized, that he would return the amount and such- interest as had accrued thereon to the decedent. The plaintiffs alleged that on the return of the decedent, about the 1st day of September, 1900, the defendant still had possession of all the money, and subsequently,'at the request of the decedent, paid certain claims owing by the decedent, which- reduced the balance in his hands to the sum of $3,012.62. The plaintiffs’ testator did not die until the 12th day of October, 1901, at which time it is alleged the defendant still had said balance of $3,012.62 in his possession or under his control. The plaintiffs then allege that after their appointment as executors they demanded the return of the money by the defendant, “ but that the said defendant wrongfully and unlawfully refused to turn over and pay to the plaintiffs the said amount in his hands and converted the same to his own. use.” This is the only allegation relating to conversion. It is not alleged that the decedent ever demanded the return of the money, and the inference from the facts alleged is that after returning from Europe, instead of asking that the money be returned to him as originally agreed, he concluded to let the defendant have the use of it, and the latter from time to time paid and discharged obligations of the decedent. This new situation between the parties continued for more than a year. In these circumstances it is doubtful whether an action for conversion could have been maintained, but in any event it requires something more than the bare allegation that the defendant refused to pay the money over to the executors and converted it, to stamp the action as one in conversion rather than an action for money had and received.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J7, McLaughlin, Houghton and Scott, JJ., Concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  