
    Frederick Lange and Others, as Executors, etc., of Henry J. Schile, Deceased, Respondents, v. Romeo H. Schile, Appellant.
    First Department,
    March 9, 1906.
    Taxation of costs — costs before notice of trial in action for money had and received —when complaint states such cause of action.
    In an action in tort the costs before notice of trial should be taxed at twenty-five dollars, but if the action be ex contractu said costs should be taxed at fifteen dollars.
    When the allegations of a complaint make it doubtful whether an action is in tort for money received in a fiduciary capacity and converted," 6r merely for money had and received, it should be construed as an action ex contmetu and the costs before notice of trial taxed at fifteen dollars.
    The mere allegation that the defendant, who had received moneys from the, plaintiff to pay out on certain claims, converted the same to bis own usej does not characterize the cause of action but may be regarded as surplusage.
    Ambiguous complaint construed.
    Appeal by the defendant, Romeo H. Sohile, from an order of the Supreme Court, made 'at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the .22d day of January, 1906, dismissing the defendant’s appeal from the taxation of costs by the clerk and affirming the said taxation.
    
      Edward W. S. Johnston, for the appellant.
    
      George M. S. Schulz, for the respondents.
   Patterson, J.:

The court at Special Term denied a motion made by the defendant for a retaxation 'of costs and affirmed the taxation of such costs by the clerk of'the city and county of Hew York, who allowed the plaintiff the amount of twenty-five dollars as costs before notice of ’ trial. The defendant insists that such costs should have been taxed at fifteen dollars. Whether the one or the other' amount should be allowed depends upon the nature of the :action, namely, whether it is upon contract or in tort. (Code Civ. Proc. §>§ 420, 3251, subd. 1.) IÚ support of the order it is insisted by the respondent that the averments of the complaint set forth a cause of action for the conversion /of money belonging to the plaintiffs’ testator. The allegations of that pleading are that Henry 3". Schile (plaintiffs’ testator) in June, 1900, gave into the possession, of the defendant moneys amounting to the sum of $4,31Y.Y4, “the defendant agreeing to deposit the ' same in~a trust company and to- apply the same to the payment of "certain claims and liens which had been filed against real property owned by the said Henry J. Schile, in the City of Hew York, and which were then being litigated, in the event of said litigation terminating prior to the return of the said Henry J. Schile to the City of Hew York; and if the said litigation had not then terminated, of if it had terminated and the defendant had not paid over the said moneys, then to return the said amount with such interest as had accrued thereon to the said Henry J. Schile upon his return as aforesaid.” The plaintiff then proceeds to state in the, complaint that on the 1st 'of September, 19Ó0, Schile returned to. the city of Hew York; that the defendant at that time had possession of the money and,that Schile then requested the defendant to pay claims owing by him (Henry J. Schile) ; that such payments were made so as to reduce the sum in the defendant’s hands to $3,012.62. After setting forth the death of Henry J. Schile and the appointment of the plaintiffs as executors, the complaint contains the: allegation that the plaintiffs made a demand for the return of the amount remaining in the defend-" ant’s-hands, but that the said defendant wrongfully and unlawfully refused to turn over and pay to the plaintiffs the said amount and converted the same to his own use, to the damage of the plaintiffs, as executors, as aforesaid, in the sum of $3,012.62, wherefore the plaintiffs demanded judgment for that sum of money with interest.

The contention of the respondents is that this complaint charges that the defendant acting in a fiduciary capacity, charged with a specific duty concerning the moneys in his hands, violated his trust and converted those moneys to his own use. It is quite apparent fi’om the allegations of the complaint that if a particular duty devolved upon the defendant in the first instance of paying claims which might be established during plaintiffs’ testator’s absence, or of restoring to him the money on his return from Europe, that l’ela•tion to the matter was changed when Henxy J. Schile did return, for under his direction and at his request some of the money was withdrawn and paid to his creditors, and the balance remained in the .defendant’s hands. That situation would indicate that the ■ defendant < merely neglected to pay over a balance of moneys remaining in his hands belonging to the plaintiffs’ testator, and the" addition in the complaint of the words that the defendant converted the same to his own use,” does not characterize the cause of action, but is to be regarded as surplusage. (Segelken v. Meyer, 94 N. Y. 484, and cases there cited.) The cause of action is for money received. It is not to be assumed that by the insertion of 'the words quoted in the complaint the pleader has declared in tort. At all events, if the cause of action set forth is doubtful or ambiguous, every' intendment is in favor of construing it as being an action ex contractu. (Goodwin v. Griffis, 88 N. Y. 629. See, also, Foote v. Ffoulke, 55 App. Div. 617; Cohn v. Beckhardt, 6.3 Hun, 333; Reed v. Hayward, 82 App. Div. 417; Town of Green Island v. Williams, 79 id. 263.)

On the trial of" this cause the statement that the defendant converted the money-to his own use could have been disregarded and a recovery had on the other allegations of the complaint,, as in an action for money had and received. (Town of Green Island v. Williams, 79 App. Div. 263.) On such"a complaint an" execution against the person could not issue. In an action of, tort the plaintiff cannot recover unless the tort be actually proven, but under this complaint a recovery could be.had upon the other allegations contairied therein-. In Britton v. Ferrin (171 N. Y. 235) the complaint was exclusively in tort; and in Moffatt v. Fulton (132 id. 507) the allegations of the complaint were also held to constitute an action in tort. We are, therefore, of the opinion that the order appealed from should be reversed, and the costs before notice of trial should be taxed at fifteen dollars.

Order reversed, with ten dollars costs and disbursements, and the item of costs in question allowed at fifteen .dollars.

■' O’Bríen, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. Order, filed..  