
    Watertown Carriage Company, Respondent, v. Edwin L. Hall, Appellant.
    
      Conversion — defense of a discharge in bankruptcy — a cause of action for embezzlement is not discharged thereby-.—allegations of unlawful and fraudulent-embezzlement treated as surplusage.
    
    The complaint in an action alleged that prior to the commencement thereof the plaintiff was the owner and entitled to the immediate possession of the. sum Of sixty-five dollars; “that heretofore and between the thirteenth day of February, 1899, and the date of the commencement of this action, the defendant did wrongfully, fraudulently and. unlawfully convert, misappropriate and embezzle said property, to wit, said sum of sixty-five dollars;” that before the commencement of the action the plaintiff duly demanded the said property, but that the defendant refused to deliver the same to the plaintiff’s damage “ of the sum of sixty-five dollars, with interest from the date of said conversion, misappropriation and embezzlement.”- ■
    
      Held, that an answer, setting up the defendant’s- discharge in bankruptcy as a defense to the action, was not -demurrable;
    That the allegations of unlawful and fraudulent embezzlement might be treated as surplusage, and the complaint would then state a cause of action for conversion, which would be within the operation of the discharge in bankruptcy. Semble, that there was also joined in the complaint a cause of action for embezzlement, as against which the discharge in bankruptcy would be ineffective.
    Appeal by the defendant, Edwin L. Hall, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 10th day of May, 1901, upon the decision of the court tendered after a trial at the Saratoga Special Term sustaining a demurrer to a part of the defendant’s answer.
    
      The complaint alleges in substance the incorporation of the plaintiff ; that prior to the commencement of the action the plaintiff was the owner and entitled to the immediate possession of- the sum of sixty-five dollars; “ that heretofore and between the thirteenth day of February, 1899, and the date of the commencement of this action the defendant did wrongfully, fraudulently and unlawfully convert, misappropriate and embezzle said property, to wit: said sum of sixty-five dollars, the same being lawful money of the United States of America.” The complaint further alleges that before the commencement of the action the plaintiff duly demanded the said property, but the defendant refused to deliver the same to the plaintiff’s damage “ of the sum of sixty-five dollars, with interest from the date of said conversion, misappropriation and embezzlement.” The third defense asserted by the defendant is in substance a discharge in bankruptcy by an order of the United States District Court of the Northern District of New Fork, which discharged the defendant from all “debts dischargeable under said, bankruptcy law.” To this defense the plaintiff demurred as insufficient in law upon the face thereof. This demurrer was by the Special Term sustained, and from the judgment entered upon the decision of the Special Term this appeal is taken.
    
      W. J. Miner and C. H. Sturges, for the appellant..
    
      Frederick B. Phillips, for the respondent.
   Smith, J.:

This judgment can only stand if the sole cause of action alleged in the complaint be of a class not discharged by the defendant’s discharge in bankruptcy. If any other cause of action be alleged upon which the discharge in bankruptcy could operate then the defense was properly pleaded, notwithstanding there be also joined in the complaint a cause of action for embezzlement as against which a discharge in bankruptcy would be ineffective. Upon examination of the complaint it will be seen that there are allegations of plaintiff’s ownership of this sixty-five dollars, and of his demand therefor upon the defendant, and of the defendant’s refusal to deliver the same. Under such allegations proof of a conversion of funds lawfully obtained by the defendant would seem to be competent, and the allegation of unlawful and fraudulent embezzlement and, misappropriation could be treated as surplusage. But as a defense to a. cause of action for conversion the discharge in bankruptcy is properly pleaded, and the demurrer to such plea as insuffcient in law upon the face thereof should have been overruled

The interlocutory judgment should, therefore, be -reversed, with costs, and the demurrer overruled, with costs.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs.  