
    George F. Frick, and Augusta Frick, Respondents, v. William Freudenthal, Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Whether an action is in tort or on contract is not determined by the prayer of the complaint — Counterclaim in an action for conversion of a claim for use and occupation.
    The prayer for relief contained in a complaint forms no part of the statement of the cause of action; it may, where the complaint is ambiguous, be resorted to for the purpose of ascertaining the pleader’s intention, but it cannot control the nature of the action as against a clearly expressed intention to the contrary.
    In an action brought to recover for the conversion of rents of real property, alleged to have been collected by the defendant as the plaintiffs’ agent, the defendant is not entitled to interpose a counterclaim for the use and occupation of certain premises let by him to the plaintiffs, as the counterclaim does not embody a cause of action “ arising out of the contract or transaction, set forth in the complaint ” nor is it “ connected with tihe subject of the action ”, > '
    When a complaint sets forth a cause of action for conversion of . moneys, notwithstanding that it demands < judgment for a liquidated amount, with interest from "a specified date, and not for damages, considered.
    Appeal from an interlocutory judgment of the City Court of the city of Hew York, which sustained a demurrer to the defendant’s counterclaim for the use and occupation of certain premises let by him to the plaintiffs, in an action brought by the latter to recover for the conversion of rents of other premises and alleged to have been collected by the defendant as the plaintiff’s agent.
    Michael 0. Gross, for appellant,
    Adolph Bloch (William L. Mathot, of counsel), for respondents.
   Bischoff, J.

The complaint as we read and construe it is, and was intended to he in tort, for the conversion of rents of certain real property alleged to have been collected and received by the defendant as-the plaintiffs’ agent, and not upon contract, for money had and received to the plaintiffs’ use. This is apparent from the allegations that the moneys were received by the defendant in a fiduciary capacity and that he has embezzled and fraudulently misapplied the same to his own use. The purport of these allegations is obvious; it is to enable the plaintiffs to cause the defendant’s arrest pending the action, and to enforce a judgment in their favor by execution against the defendant’s person. Code Civ. Pro., § 549, subd. 2; § 1487, subd. 2. For should these allegations be treated as surplusage, as the defendant contends they may be. (Fyfe v. Jackson, 55 App. Div. 74), since their substantiation by proof upon the trial is material to the plaintiffs’ right of recovery. Code Civ. Pro., § 549, subd. 2. True, the prayer of the complaint in terms demands judgment for a liquidated amount, with interest from a specified date, and not for damages as is ordinarily the case in actions sounding in tort; but the prayer for judgment forms no part of the statement of the cause of action. It may, where the complaint is ambiguous, be resorted to for the purposes of ascertaining the pleader’s intention,, but it cannot control the nature of the action as against a clearly expressed intention to the contrary. The counterclaim did not embody a cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiffs’ claim,” nor was it “ connected with the subject of the action ” (Code Civ. Pro., § 501, subd. 1), and the demurrer thereto was properly sustained.

Judgment affirmed, with costs to respondents.

Freedman, P. J. and Fitzgerald, J., concur.

Juddgment affirmed, with costs to respondents.  