
    Ellen Duff, Appellant, v. George Blair, Respondent.
    
      Action to set aside a power of attorney and for an accounting—when it should not he dismissed on the ground that the complaint states a came of action ex delicto, ... which cannot be converted into one ex contractu.-
    In March, 1900, a woman, seventy years of age, who had no immediate relatives and was in poor health, applied-for and was given lodging in One of the municipal lodging houses in the city of New York.' It was then discovered that she had upon her person a small sum of money and several hank hooks, representing deposits to the extent of $4,700. On the following day she was taken to the superintendent of the out-of-door poor in the city of New York, ' and in less than one hour thereafter he induced her to give, him an irrevocable power of attorney to manage her property and an assignment of the hank books. Immediately thereafter he withdrew the moneys represented by the hank hooks and deposited them in a hank to his personal credit. He also entered into a contract with a religious fraternity for the care and maintenance of the woman.
    After maintaining the woman until August,. 1901, in consideration, of which they had received upwards of §1,300, the religious.fraternity refused to. allow her to - remain there and informed the superintendent that they believed her to he insane. The superintendent then instituted proceedings to have her adjudged insane, hut was unsuccessful in his efforts.
    Thereafter the womaii brought an action against the superintendent to set aside the power of attorney and for an accounting. Upon the trial the court found' that the defendant had in his possession moneys belonging to the plaintiff, but dismissed the complaint upon the merits upon the ground that it stated a cause of action ex delicto which could not be converted into one ex contractu.
    
    
      Reid, that the judgment should be reversed;
    That, under the circumstances, the plaintiff was entitled to an accounting.
    Appeal by the plaintiff, Ellen Duff, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Henry H. Whitman, for the appellant.
    
      George A. Wyre, for the respondent.
   McLaughlin, J.:

This action was brought to set aside a power of attorney and for an accounting. The complaint alleged, in substance, that on the 7th of March, 1900, the plaintiff was the owner and in possession of upwards of $4,700, which was deposited to her credit in different savings banks in the city of New York; that late in the evening of that day she applied to and was given lodging in one of the municipal lodging houses for the destitute in such city; that it was then discovered by some of the persons in charge thereof that she had upon her person a small sum of money and several bank books representing deposits in such banks ; that on the following morning she was taken to the office of the defendant, who was the superintendent of the out-of-door poor in such city, and that he then took from her the money which she had, together with her bank books, and induced her to sign an irrevocable power drawn by and constituting himself her attorney to take charge of and manage her affairs, together with an assignment of the bank books and the moneys represented thereby; that immediately thereafter he drew such moneys and deposited the same in a bank to his personal credit; that prior to the commencement of the action 'the plaintiff demanded of the defendant that he account for and pay over to her all of such moneys, and that he also deliver up for cancellation the power of attorney, assignment, etc., which he had refused to do, and the judgment demanded was that such papers be canceled and annulled, and that . the defendant be directed to account.

The defendant,, in his answer, admitted the receipt of the moneys and also the execution of the power of attorney and the assignment, but alleged that the same was the voluntary act of the plaintiff, and that thereafter he had in good faith, and' in the discharge of his duties as her attorney, entered into a contract with the Sisters of St. Dominic, by which the plaintiff was to be maintained, clothed and cared for during the remainder of her life, and that the defendant further alleged that the plaintiff, as he was informed and believed, was mentally deranged and wholly incompetent to care for herself or her property, and he asked that the complaint be dismissed, with costs.

Upon the issues thus formed the parties went to trial, and it was there established that substantially all of the allegations of the complaint were true, and in addition thereto that the plaintiff, at. the time she signed the power of attorney was upwards of seventy years of age that the moneys represented, by the various bank books had been earned by her as a cook that she had no immediate relatives, and that when she applied for admission to the lodging house referred to in the complaint it was late at night, and that she was thinly clad and in poor health; that on the morning following she was taken to the office of the defendant, and that in less than one hour thereafter lie induced her to give him a power of attorney to manage her property, and which contained a clause that in his management of her affairs he should not be subjected to investigation so long as he properly carries out the powers vested in him for my care; ” that on the same day, or the day following, he entered into a contract with the Sisters of St. Dominic by which he agreed to pay for her care and maintenance, during the month of March, the sum of $200; April, $150; May, $100; June $75, and $60 per month thereafter; that in pursuance of the contract the plaintiff was maintained and supported until August, 1901, when the defendant was informed she could no longer remain there; he was also informed that in the opinion of the sisters the plaintiff was insane; that he thereupon instituted proceedings to have her adjuged insane, but he was unsuccessful in his efforts, and thereafter this action was brought for the purpose of obtaining the relief before stated.

The defendant admitted upon the trial, and the court found, that the defendant had in his possession moneys belonging to the plaintiff, and yet, notwithstanding the foregoing facts, together with this admission and finding, the complaint was dismissed upon the merits upon the ground, as appears from the opinion of the learned trial justice, that the complaint states a cause of action ex delicto, and it cannot now be converted into one ex cont/ractu.” It makes little difference what- the cause of action alleged is called. The enforcement of a right or the redress of a wrong never depends upon a name, and in the administration of justice the court looks to the substance rather than to the form of an action. The fact is that the complaint here alleges, and the proof offered upon the trial established, that the defendant has in his possession moneys which belong to the plaintiff, and, this being true, she was entitled to have him account for and pay over the same to her on demand, and there is no allegation in the answer or in the proof upon the trial which justified defendant’s action in refusing to do so.

Here we have an old and feeble woman, without friends or relatives, who, by her own efforts and by denying herself many, if not substantially all the comforts of life, has saved nearly $5,000, and in her declining years,, when age has practically destroyed her intellectual powers, her savings are taken from her by the defendant — an utter stranger — on the ground that he will provide for her a home in which she shall be cared for during her life and, upon her death, decently buried. After the parties with whom he has entered into a contract for that purpose have failed to perform the same, notwithstanding he has paid them upwards of $1,300, and she has by reason thereof called upon him to account to her for her money, he refused to .account and instead instituted proceedings to have her adjudged incompetent to manage her affairs. If such facts do not entitle a party to an accounting, it is difficult to understand what facts would. It is the plaintiff’s money; she has a right to be informed what has become of it, and the defendant could not, under the law, refuse to tell her. It is true she had given the defendant a power of attorney, and to the extent that he had acted fairly and in good faith under it she was bound, but the moment she revoked that power then it became the duty of the defendant to turn over to her whatever moneys were left in his hands, less, of course, the expenses incurred and the' amount disbursed by him in.good faith. It would be a sad commentary upon the administration of justice if this plaintiff, upon the allegations of her complaint, all of which were established at the trial, could not obtain from the defendant an accounting.

, The judgment appealed from, therefore, must be reversed and a .new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  