
    James Clarence Sinclair, Appellant, v. Cecil Campbell Higgins, Respondent.
    Second Department,
    January 26, 1906.
    Conversion — when complaint states cause of action for conversion — when question as to whether moneys_were turned over for investment or ás loan is for the jury — when written evidence not conclusive.
    A complaint', which alleges in substance that the defendarit, acting as plaintiff’s ■ attorney, induced him to turn over moneys on a promise to (invest the same in a water company in. which,the defendant was interested, which-representa- ■ tions were false, etc., and' that the defendant did not so invest said moneys but converted the same to his own use, can be regarded as stating a cause of action for conversion and not for fiilsd and fraudulent representations.
    If there is some evidence of such promise to invest the moneys, it is error to dismiss the complain^; on the ground that the moneys were loaned to the defendant. . It is a question.for the jury as to whether the moneys were turned over for investment or as a loan. ■ .
    Papers introduced in evidence and in form evidencing a loan, are not conclusive.
    Appeal by the plaintiff, James Clarence Sinclair, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the. county of Kings on the 13th day of January, 1905, upon the dismissal of the complaint by direction of the court "after a trial at the Kings County Trial Term.; also from an order entered in said clerk’s office on the lltli day of January,-1905, denying the plaintiff’s motion for a new trial, and also from an order entered in said clerk’s office on the 28tli day of January, 1905, granting the defendant an extra allowance of costs.
    The complaint in this "action provides as follows:
    “ I. A't all -.the times hereinafter mentioned,, defendant was and now is, an attorney and counsellor at law of the State of Mew York, with an office at Mos. 63 and 65 Wall street, in the City of Mew York) Manhattan Borough..
    “II, In September, 1900, and. for several months prior thereto, defendant was the legal adviser of plaintiff and undertook to and did advise plaintiff in respect of the investment of plaintiff’s moneys.
    “III. In September, 1900, plaintiff was only 26 years of age, and defendant more than 40 years of age.
    “ IY. In September,. 190.Ó, defendant, while acting in the capacity of attorney and legal adviser of plaintiff, falsely and fraudulently represented^ to plaintiff that he was - interested in and about to"acquire control of a large water company in the County of Westchester, in the City of Hew York, in the State of- Hew York, and in order to procure from plaintiff the sum of Ten Thousand ($10,000.00) Dollars more particularly referred to hereafter, falsely and fraudulently represented, promised and agreed that upon the delivery of said sum of Ten Thousand ($10,000.00) Dollars by plaintiff to defendant, defendant would immediately invest the said Ten Thousand ($10,000.00) Dollars in said water, company and obtain control thereof for the benefit and profit-of plaintiff.
    “ Y. In sole reliance upon said promise, representation and agreement as aforesaid, plaintiff delivered to defendant the sum of Ten Thousand ($10,000.00). Dollars by check, of which the following is a true and correct copy: * * *
    “ YI. Defendant- at the time of the making of said representations, promises and agreements, and at the time of the procurement of said moneys, was not interested in any water company in the County of Westchester, in the City and State of Hew York, or elsewhere, nor was the defendant about to acquire control of a water company in the County of Westchester in the City and State of Hew York or elsewhere, nor did the defendant invest said Ten Thousand ($10,000) Dollars in said water company or in any other matter, but fraudulently converted the said Ten' Thousand Dollars to his own use.
    “ YII. At various times between .September, 1900, and the commencement of this action, plaintiff demanded the return óf said Ten Thousand Dollars, but defendant at all times refused to return said Ten Thousand Dollars, falsely and fraudulently representing to plaintiff that he had invested said Ten Thousand Dollars in the manner represented, promised and agreed to by him, and -in order to . deceive plaintiff and prevent him from enforcing his legal remedies in respect of the said Ten Thousand Dollars fraudulently delivered to plaintiff a series of promissory notes each in the sum of Twenty Thousand Dollars indorsed by one Louis B. Jennings, conspiring/ with defendant to unlawfully obtain said Ten Thousand Dollars from plaintiff. * * *
    “ YIII. As pretended security for the return of said Ten Thousand Dollars defendant delivered to plaintiff first mortgage '&%. gold bonds * . * * in Tinten Manor Water Company of the pretended value of $10,090,00. . ‘
    “ Upon information and belief,, TintemManor Water Company is. absolutely and in all respects insolvent, and the said bonds ;are- and. each of them is in all respects .valueless, and defendant well knew at the time of the delivery of said bonds .to plaintiff, that said bonds were and each of them was of no value. * * *
    . “ IX. Defendant at the time of said representations and procurement of said -moneys, was and now is, absolutely arid in all respects insolvent. The following is a true and correct copy of the judgment .docketed against defendant in the office of the Clerk of the - County of He w York, City of New York. * *" *
    “ X. Defendant well knew at the time he made said representations, promises and agreements that he did not'intend to’ return said' $10,000,00 and did not intend to invest $10,000.00 in said water' company or elsewhere, but defendant procured said $10,000.00 for ■ the purpose Of bon verting same to -h-is own use,
    “ XI. Plaintiff relied upon said representations made by defendant as aforesaid, and believed them to be true, and except for said representations would not have delivered said Ten Thousand Dollars to defendant; , _
    “ Wherefore, plaintiff demands judgment , against defendant-for the sum.of Ten Thousand Dollars, with interest. ***”'.
    
      I. R. Oeland [S. S. Myers with him on the brief], for the appellant.
    
      Frank E. Blackwell, for the respondent.
   Per Curiam :

If thb action is capable -of being regarded only as a suit to recover damages for false and fraudulent representations, the reasons given by the learned trial judge in support of his disposition of the case might be deemed satisfactory. It seems to us, however, that it may fairly be viewed as an action for conversion, based on the alleged promise of the defendant to invest the plaintiff’s $10,000 for him in a water company, his acknowledged failure to do so, and Ms retention of the money to his own uke. Certainly there is some evidence of such a promise; the defendant admits that he did not invest the money for the plaintiff at all; and his assertion that it was a loan is an implication, if any further evidence than his failure to return it were needed, that he has ajiplied the money to'his own purposes. We think there was a question for the jury and that the complaint should not have been dismissed. The judge was not authorized to decide as matter of fact that the transaction was in reality a loan, in view of the plaintiff’s testimony tending to show that such was not-its true character; the circumstance that the form of the papers indicated a loan was' not conclusive. .

The plaintiff appears to have fared rather hardly in this litigation. He has parted with $10,000, without receiving any value for it, to. a stranger who makes no substantial excuse or apology for not repaying the money and-who has succeeded in imposing a penalty of $250 upon the plaintiff in the shape'of an additional allowance by way of costs for trying to get it back.

The judgment and both orders should be reversed.

Present — Jenks, Hooker, Rich and Miller, JJ. .

Judgment and orders reversed and new trial granted, costs to abide the event.  