
    Artemas H. Holmes, Respondent, v. Emile Leighton, Appellant.
    Appeal by the defendant from an order of the Special Term of the City Court of the' city of .New York, denying the defendant’s motion to vacate and set aside an execution against the person.
    Louis C. Lewis, for respondent.
    Wales F. Severance, for appellant.
   Freedman, P. J.

This action was brought to recover from the defendant the sum of $400, being, as alleged in the complaint, the proceeds arising from the sale of a horse which had been placed by plaintiff’s assignor in the hands of the defendant to be sold.

The defendant answered the complaint, and after denying all the allegations of the complaint set up as a separate defense the following:

“ Defendant alleges that on or about the 5th day of July 1902 one Lillian S. Holmes delivered to defendant a bay gelding for the purpose of having defendant sell said horse on her account for the sum of $400. less a commission of 10 per cent for the services of defendant as the sales agent of said horse.
“ That thereafter and on or about July 7th, 1902 said defendant sold said horse for the sum of $400., and thereafter tendered the plaintiff the sum of $360. in full for the amount received by defendant from the sale of the said horse, less his commission of $40. or 10 per cent of the purchase price of said horse which purchase price was the sum of $400. That said tender was refused. That said defendant is ready and willing to pay said plaintiff the sum of $360. the proceeds of the sale of said horse.”

From the contents of certain letters that passed between the parties, and which letters were read in a motion for judgment herein, it seems that said tender consisted of defendant sending plaintiff a post-dated check, which was refused and returned to defendant. After the answer was served the plaintiff, claiming that under section 511 of the Code of Civil Procedure, he was entitled to a judgment, made a motion at a Special Term of the City Court for judgment, and an order was made allowing plaintiff judgment for the sum of $360 and costs, said order reciting that the plaintiff “ elected that the action be not continued for the remainder of his claim.” A judgment was entered thereon and after issue and return of an execution against the property, a bndy execution was issued, and from the order denying defendant’s motion to set aside the last-named execution this appeal CO" '°s up.

Plaintiff’s complaint charged conversion, but the defendant urp-os that, the plaintiff having entered judgment upon the pleading- rnurt be deemed to have waived the allegations of the complr’-nt and relied upon those of the answer, and that those alV'v'’t.ions constitute a cause of action for money had and received and nothing more. We think in this the defendant is in error. The answer admits that plaintiff’s assignor placed with the defendant a horse to be sold by him on “her account.” That he sold said horse for $400, and that he tendered the plaintiff $360 in full “ of the amount received by the defendant ” from the sale of the horse. This sum was, however, never paid. In fact said sum was never tendered, merely a post-dated check being offered plaintiff. Under the more recent decisions it has been held that “the relation between a commission agent for the sale of goods and his principal is fiduciary.” Baker v. New York Nat. Exch. Bank, 100 N. Y. 31. “Property thus received is received in a fiduciary capacity, and when the property is turned into money, that is also received in a fiduciary capacity. It does not belong to the agent, who can lawfully exercise no power or authority over it, except for the benefit of his principal, and only as authorized by him. If he uses it for his own purposes * * * it is a conversion of that which does not belong to him.” Moffatt v. Fulton, 132 N. Y. 507, 515; Britton v. Ferrin, 171 id. 235, 242.

The admissions of the defendant’s answer clearly place him within the purview of the foregoing decisions, and rendered him liable upon the facts as alleged by him in his answer to a judgment, under which, in default of property, his person was liable upon execution.

Order affirmed, with costs.

•Tkuax and Gildeesleeve, JJ., concur.

Order affirmed, with costs.  