
    ROSEN v. BRODSKEY.
    (Supreme Court, Appellate Term.
    March 24, 1899.)
    Pleading—Variance.
    Under a complaint for conversion, no recovery can be had on a cause of action on contract.
    Appeal from municipal court, borough of Manhattan, Fourth district.
    Action by Moses Rosen against Max Brodskey. There was a judgment for defendant, and plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and EEVEN-TRITT, JJ.
    Fleugelman & Bach, for appellant.
    Friend, House & Grossman, for respondent.
   FREEDMAN, P. J.

The complaint in this action was for a conversion, and the answer a general denial. The case contains conflicting evidence, and seems to have been tried by both parties more in the nature of an accounting than otherwise; but the judgment for the defendant is clearly right, because no recovery upon a cause of action founded upon contract could be had under the pleadings, and the testimony wholly failed to establish conversion.

Judgment should be affirmed, with costs. All concur.  