
    The Beggar Students’ Pleasure Society, Respondent, v. Abraham Eichel, Appellant.
    (Supreme Court, Appellate Term,
    November, 1898.)
    Conversion — Not established by a violation of the duties of a fiduciary relation.
    A treasurer of the entertainment committee of a society who, upon a division of the society into two hostile factions, pays moneys, realized from an entertainment, to the treasurer of one faction,, is not liable to the other faction, claiming to be the only legitimate society, as for a conversion, for, assuming the payment of the treasurer to have been made to the wrong person, the treasurer has at most only been guilty of violating a duty arising out of his fiduciary relation, a matter less-serious than a conversion.
    Appeal from a judgment of the Tenth Municipal Court, borough of Manhattan, in favor of the plaintiff.
    Otto Kempner, for appellant.
    Julius Levy, for respondent.
   Gildersleeve, J.

The action is for the alleged conversion by the defendant of the sum of $105.05. In December, 1897, the organization, known as The Beggar Students’ Pleasure Society, gave an entertainment, and the defendant, who was a member of said organization, was made the treasurer of the committee that had charge of this entertainment. After paying all expenses the sum of $105.05 remained in defendant’s hands, as such treasurer of the entertainment committee. While the money so remained in defendant’s possession, the said organization broke into two hostile factions, each of which elected a board of officers, and claimed to be the only legitimate Beggar Students’ Pleasure Society. One Matzner was chosen treasurer of the faction with which the defendant allied himself, and to the said Matzner, as such treasurer, the defendant paid over this sum of $105.05. Subsequently, Matzner retired from the office of treasurer, and one Pollard was chosen in his place, to whom Matzner, in turn, transferred said money. The plaintiff, which is composed of the opposite faction of said organization, and which, as we have said, claims, like its rival, to be the only Beggar Students’ Pleasure Society, charges defendant with a conversion of the money in question, for the reason that he has not paid it over to plaintiff’s treasurer.

It has been held by this court that, in view of the serious consequences attending the recovery of a judgment on conversion, the plaintiff must be held strictly to his pleadings; and that unless a case of conversion has been made out, the judgment must be reversed, although the proofs may show that the defendant is liable for the amount sued for on some other theory. See Wright v. Duffie, 23 Misc. Rep. 339. Assuming that the defendant did, in point of fact, pay over the money to the wrong treasurer, as claimed by the plaintiff, and as found by the court, still we are not persuaded that he has been guilty of a conversion. It seems to us that defendant was acting in a fiduciary capacity, and that the case of Farrelly v. Hubbard, 148 N. Y. 595, does not apply. As treasurer of the entertainment committee, he collected the receipts, paid out the necessary disbursements, and for the balance it was his duty to account to the organization. If he failed to account for this money, it was a violation of a duty arising out of his fiduciary relation; but it was not a conversion of the proceeds. See Wright v. Duffie, supra.

As we have reached the conclusion that the judgment should be reversed for the reason above stated, it becomes unnecessary to dis■cuss the numerous other points raised on the appeal.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Giegebich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  