
    Thomasina Adorff, Respondent, v. Albert Bechter and Harriet Bechter, Appellants.
    (Supreme Court, Appellate Term,
    January, 1911.)
    Municipal Courts — Procedure — Execution — Against the person — Nature of action as determining right — Nature of action, how determined.
    Where, in an action brought in the Municipal Court of the city of New York, the pleadings are oral, resort must be had to the testimony rather than to the exact language of the complaint to determine the nature of the action.
    In such case, though the complaint was “ conversion ” but the testimony showed merely a breach of contract, the action will be deemed an action on contract and a judgment in contract will be sustained.
    Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, rendered in favor of the plaintiff.
    Peacock & Steves (George A. Steves, of counsel), for appellants.
    Baker & Hyman, for respondent.
   Per Curiam:

Judgment affirmed, with costs.

Giegerich, J.

(concurring.) The pleadings in this action were oral, the plaintiff’s complaint being “ conversion.” The testimony tended to show merely a breach of contract as to which there was a disputed question of fact, and the plaintiff recovered a judgment. The judgment contains no clause authorizing the arrest and imprisonment of the defendants and is, therefore, a judgment on contract only. The appellants’ ground for reversal is substantially that, the complaint having set up a cause of action for conversion, no judgment in contract could be recovered. This would be true had the pleadings been written. In such a case a recovery can only he had for the cause of action set forth in the complaint, hut where, as in the case at bar, the pleadings are oral, the court must resort to the testimony to determine the nature of the action, more than to the exact language of the complaint. Greenberg v. Angerman, 84 N. Y. Supp. 244; Cossel v. Altschul, 91 id. 1. The judgment herein must, therefore, he affirmed.

Judgment affirmed, with costs.  