
    John Connor, Appellant, v. Edgar W. Philo, Respondent.
    Third Department,
    January 18, 1907.
    Trial — complaint stating action on contract and for conversion — proof of action on contract warrants recovery—Code Civil Procedure, section 549, subdivision 4, construed.
    Where a complaint contains a statement of facts constituting an action upon contract which is sustained by proof at trial, a recovery is authorized although the complaint also contains allegations of tort.
    Thus when the complaint sets out a contract of employment and a breach thereof by the defendant, and also that the defendant, as a contractor, was to receive compensation under his contract and to pay labor from the proceeds and that the defendant refused and neglected to pay the plaintiff from the funds received but wrongfully converted and disposed of such funds to his own use, the plaintiff upon establishing the facts supporting the action for breach of con- , tract is. entitled to recover, even though there be insufficient proof of the allegations of conversion.
    Subdivision 4 of section 549of the Code of Qivil Procedure, providing when in an action upon contract the complaint alleges fraud, the plaintiff cannot recover unless he prove the fraud on trial, does not apply to actions in Justices’ Courts 'but relates only to actions in the Supreme Court, the City Court of the city of New York of to a County Court.
    Appeal by the plaintiff, John- Connor,. from a judgment of the County Court of Washington county, entered in the office of tlie clerk off said county on the 15th day of September, 1906, reversing a judgment of'a justice of the peace .of the town of Greenwich in favor of the plaintiff, entered on the 19th day of May, 1906.
    The allegations of the complaint are as follows:
    
      First. That the plaintiff was 'employed by the defendant, and rendered services for said defendant from the 30th day of September, 1901, to the 1st day of May, 1902, at the agreed- compensation of $1.25' per dayand that the defendant, is justly indebted to said plaintiff in the sum of $114.89 remaining unpaid and due to said' plaintiff for said services, together with interest thereon at three per cent, amounting to $195.89 in all'.
    
      Second. That during the time above mentioned defendant, was under contract with the Salem Electric Light and Power Company, by the terms of which contract said defendant was to operate and to pay for the labor employed in the' operation of the plant of said company, located at East Greenwich, hi. Y., and was to receive as compensation'and pay for said labor from the proceeds of the commercial or private lighting done by said company in the village of Salem, hi. Y.; that the labor of plaintiff above described was performed for defendant upon the plant of said company and- in the operation of said plant. -
    
      Third. That said defendant did receive the proceeds of said private or commercial lighting above mentioned as compensation for his services and for the payment of 'the services’ rendered -by plaintiff to defendant' as herein set forth; and that, defendant has ■ refused and neglected upon plaintiff’s demand to pay plaintiff from th'e funds so received for the payment of said plaintiff* and has, being then in the possession of said funds for that purpose, wrongfully and unlawfully converted and -disposed of said funds to his own use; that by reason of said wrongful acts of defendant the plaintiff has sustained damage in the sum of $195.89.
    Wherefore, plaintiff demands judgment against said defendant in the sum of $195.89, together with the costs of this action.
    On the trial in the Justice’s Court the plaintiff recovered a judgment for the amount claimed. On appeal to the County Court this judgment was reversed* and from such judgment of reversal the plaintiff has appealed.
    
      ErsMne O. Rogers, for the appellant.
    
      Robert N. Wilson, for the respondent.
   Chester, J.:

The County Court was of the opinion that' the trial in the justice’s Court had proceeded on the theory that the action was one for conversion and not upon a contract. If that supposition was correct the reversal was right, as no cause of action in tort was proven. But we are unable to see from this record that the action was tried solely as one for conversion. The complaint in the first paragraph states a complete cause of action upon contract.' This cause of action was supported by sufficient proof upon the trial. It is true that in the other paragraphs of the complaint an attempt is made to state a cause of action in tort, and some proof upon the trial was given tending to support such a cause of action, but much proof that was- apparently offered on that phase of the case was excluded by the justice, and there was a complete failure to prove a cause of action in tort. The action., therefore, appears to be clearly within that class of authorities which hold that where a complaint contains a statement of facts constituting a cause of action upon a contract which is sustained by proof, a recovery is authorized, although the complaint also contains allegations of a tort. (Fowler v. Abrams, 3 E. D. Smith, 1; Conaughty v. Nichols, 42 N. Y. 83; Cohn v. Beckhart, 63 Hun, 333; Dodge v. Eckert, 71 id. 257; Town of Green Island v. Williams, 79 App. Div. 260; Booth v. Englert, 105 id. 284.) The allegations of tort in such cases are regarded as surplusage.

There Having been the allegation and proof of a complete cause of action upon contract, entirely separate and distinct from the attempt to allege and prove a cause of action in tort, we think the judgment rendered by the justice was authorized and should not ' have been disturbed.

The provision of subdivision 4 of section 549 of the Oode of Civil Procedure, citéd by the respondent, has no bearing on the question, as that relates only to actions in the Supreme Court, the City Court of the city of New York or a County Court (Code Civ. Proc. § 3347, subds. 4, 5), and the trial here was in a Justice’s Court.

The judgment" of the County Court should be reversed and that of the Justice’s Court affirmed, with costs in this court and. in the County Court to the appellant.

All concurred ; Parker, P. J., not sitting.

Judgment of County Court reversed and that of Justice’s Court affirmed, with costs in this court and in the County Court to the appellant. .  