
    Theodore Reichmann, Respondent, v. Jesse S. Nelson, Appellant.
    (New York Superior Court—General Term,
    July, 1895.)
    An action to recover moneys collected by the defendant as the agent of the plaintiff under a power of attorney, and which he failed to pay over, is one ex delicto, although the complaint does not allege that the moneys are received in “ a fiduciary capacity ” and counterclaims arising upon contract not connected with the subject of the action cannot be allowed therein.
    Appeal from " judgment in favor of the plaintiff, entered upon the report of a referee.
    Action to recover moneys received by defendant for plaintiff under a power of attorney, given by the latter, to collect rents and manage certain real estate in the city of New York.
    
      Foley c& Powell, for appellant.
    
      A. W. Kent, for respondent.
   Per Curiam.

Under the decisions in Moffatt v. Fulton, 132 N. Y. 507, and Davis v. Aikin, 85 Hun, 554, particularly the former, the action, notwithstanding the omission of the allegation that the moneys were received by the defendant in a fiduciary capacity,” was in form ex delicto, and'the counterclaims arising on contract not "connected with the subject of the action were properly disallowed by the referee.

The referee, howevfer, properly allowed the defendant credit for matters - pleaded by way of counterclaim which pertained to the real estate from which the collections were made, since these were connected with the subject of the action.

We find no error in the rulings and the judgment must be affirmed, with costs.

Present: Freedman, McAdam and Gildersleeve, JJ.

Judgment affirmed, with costs.  