
    Stephen L. Bartlett, Resp’t, v. Edward Sutorious, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 10, 1890.)
    Abbbst—When obdbb will be vacated.
    An order of arrest on the ground that defendant has converted moneys-received by him in a fiduciary capacity will be vacated where the complaint does not allege, or set forth facts showing a fiduciary capacity on the part of defendant.
    Appeal from order denying motion to vacate an order of arrest.
    The order of arrest was granted November 8, 1888, the ground stated therein being conversion by defendant of money “received by him as agent of said plaintiff in a fiduciary capacity." The complaint alleged that plaintiff shipped certain goods to defendant, then his agent at New York, to sell for cash or on thirty days* credit; that defendant received and sold said goods, except a portion which was returned, and collected the proceeds of said sales; that he has neglected and refused,to render an account or pay over such proceeds, and has wrongfully converted the same to his own ■*se.
    
      A motion was made, upon order to show cause returnable November 15, to vacate" said order of arrest on the ground that the complaint did not sufficiently allege the receipt of said moneys in a fiduciary capacity. The action having been tried November 16 and 17, and a verdict rendered against defendant, the motion was denied on the ground that it necessarily fell by reason of such trial and verdict.
    
      A. G. Fox, for app’lt; D. D. Sherman, for resp’t.
   Per Curiam.

The order appealed from should be reversed and the order of arrest vacated, without costs.

Van Brunt, P. J. and Bartlett, J., concur.  