
    TOWN OF GREEN ISLAND v. WILLIAMS.
    (Supreme Court, Appellate Division, Third Department.
    January 14, 1903.)
    1. Justices of Peace—Accounting for Fines—Monet had and Received-Complaint—Redundant Allegations.
    Code Or. Proc. § 726, provides that fines received by justices oí the peace shall be paid by them within 30 days to the supervisor of the town. Section 728 provides that on the failure of a magistrate to turn over such fines it shall be the duty of the supervisor to commence action therefor in the name of the town. A complaint by a supervisor set out the receipt of the fines by a justice and a failure to pay them over, and alleged, in addition, that defendant “wrongfully and unlawfully has converted same to his own use and benefit, and wrongfully and unlawfully withholds same from the plaintiff.” iHeld, that a recovery for money had and received would not be defeated under the complaint because of its redundant and separable allegations of conversion.
    Appeal from Albany county court.
    Action by the town of Green Island against Aaron P. Williams. From a judgment of the county court reversing a judgment of a justice’s court in favor of plaintiff, plaintiff appeals. Reversed.
    The following is a copy of the plaintiff’s complaint:
    “The plaintiff, by Carrell Coon, its supervisor, complains of the defendant, and for a cause of action alleges: (1) That it is a municipal corporation duly incorporated under and by virtue of chapter 811 of the Laws of 1896 of the state of New York, and is a political division and town of the county of Albany, and has been such at all times hereinafter mentioned. (2) That the said Aaron P. Williams, from and after the 1st day of January, 1897, and up to and including the 31st day of December, 1901, was one of the justices of the peace of said town, having criminal jurisdiction in said town, and having power to impose fines upon persons convicted of crimes and misdemeanors within his jurisdiction. (3) That by section 726 of the Code of Oriminal Procedure said justice was required to pay the supervisor of said town of Green Island any and all fines received by him as such justice within thirty days after the receipt of the same, and that, upon his failure to do so, such fines could be recovered by the supervisor of the said town in an action to be brought by him in the name of his town. (4) That said defendant has failed to pay over to said town fines imposed by him amounting to $25, as plaintiff is informed and believes, and wrongfully and unlawfully has converted same to his own use and benefit, and wrongfully and unlawfully withholds same from the plaintiff and the officer representing said town, to whom same should be paid for the said plaintiff. (5) That said Carroll Coon is the supervisor of said town, and under the law is entitled to receive said fines in behalf thereof, and that same has not been paid over, nor any part thereof. Wherefore plaintiff demands judgment against said defendant for the sum of $25, besides the costs of this action.”
    After joining issue, counsel for the plaintiff moved to amend the complaint by changing the amount of $25 to $39, and by withdrawing the allegations of conversion. The defendant objected to the complaint being amended by withdrawing the allegations of conversion, whereupon that part of the motion was withdrawn. The complaint seems to have been deemed amended as to the amount. A jury was impaneled, and on the trial the facts stated in the first, second, third, and fifth paragraphs of the-complaint, together with the fact that defendant had failed to pay over to said town fines imposed by him amounting to $39, were satisfactorily established. The jury rendered a verdict against the defendant for $39, and judgment was thereupon entered in favor of the plaintiff for that amount, with costs. An appeal was taken by the defendant to the county court, which reversed the judgment of the justice’s court. This appeal is taken from said judgment of reversal.
    Argued before PARKER, P. J., and KELLOGG, SMITH, CHASE, and CHESTER, JJ.
    William F. Hickey, for appellant.
    Aaron P. Williams, in pro. per.
   CHASE, J.

By section 726 of the Code of Criminal Procedure it is provided:

“If a fine imposed be paid before commitment it must be received by the court, and within thirty days after its receipt, paid by such court to the supervisor of the town in and for which such court is held.”

By section 728 of said Code it is further provided:

“If the court * * * receiving the fine fail to pay to the supervisor as provided in the last two sections such supervisor must immediately commence an action therefor against * * * the magistrate or magistrates composing the court in the name of his town.”

The defendant, while a justice of the peace of the town of Green Island, received $39 from fines" imposed by him which he failed to pay to the supervisor within 30 days after their receipt, as provided by the section first quoted. The defendant was clearly liable to the plaintiff for money had and received.

The question for determination on this appeal is whether, under the complaint in this action, the'jury was justified in finding a verdiet for the plaintiff. The complaint sets forth facts constituting a good cause of action for money had and received. That part of the complaint quoted in italics is independent of the other allegations, and could be wholly omitted without affecting its other provisions. Where a complaint contains a statement of facts constituting a cause of action on contract, sustained by proof of such facts, upon the trial a recovery is authorized, although the complaint is in form for conversion. Conaughty v. Nichols, 42 N. Y. 83. Where a complaint sets forth a cause of action ex contractu, an allegation therein of an incorrect legal conclusion having the aspect of a tort does not change the nature of the action. Greentree v. Rosenstock, 61 N. Y. 583. These cases have been frequently cited with approval. It follows, therefore, that the judgment of the justice’s court upon the undisputed facts in the case for the amount of the fines received, to the use of the plaintiff, was right, and should have been affirmed by the county court. We have examined the other objections urged by the defendant, but do not think that they should defeat a recovery by the plaintiff.

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 concur.  