
    Abraham Frankel, Appellant, v. Morris Dinitz, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Fraud — action for — duress — when party may sue either on contract or in tort — pleading.
    A plaintiff in an appropriate case may sue either on contract or in tort.
    Where a complaint alleges that plaintiff, employed by defendant at a salary plus a share of the profits, deposited $5,000 as security for the faithful performance of his duties which sum, on termination of the contract, he demanded, together with his share of the profits, that defendant refusing to return the deposit except on unauthorized conditions and knowingly misrepresenting the extent of the profits induced plaintiff to accept a compromise whereby he received the deposit and promissory note for a certain amount, though his share of the profits would have been much larger, a cause of action for fraud and duress is stated upon proof of which plaintiff was entitled to recover his damages.
    An order which, by striking out as irrelevant certain allegations of the complaint, converted the action into one on contract will be reversed.
    Appear by plaintiff from an order of the City Court of the city of New York striking out as irrevelant certain allegations contained in the complaint.
    Henry Kuntz (Abraham P. Wilkes, of counsel), for appellant.
    A. A. Kotzen, for respondent.
   Bijur, J.

The complaint alleges that plaintiff was employed by defendant at a certain salary plus a proportion of the profits earned, and that he deposited with defendant $5,000 as security for the faithful performance of his duties; that upon the termination of the contract plaintiff demanded the. return of the $5,000 and his proportion of the profits earned; that defendant exercised duress by refusing to return the $5,000 except upon unauthorized conditions and knowingly misrepresented the extent of the profits earned, and thus induced plaintiff to accept a compromise whereunder he received $5,000 and $750 in promissory notes, although his share of the true'profits would have been very much larger.

Plaintiff alleges that by reason of the foregoing he was damaged at least in the sum of $2,000. His complaint sets out a cause of action in tort, namely, fraud and duress, upon proof of which plaintiff is entitled, as is said by the Court of Appeals in Gould v. Cayuga County Bank, 99 N. Y. 333, 341: “To have such compromise agreement made as good for him as it reasonably and fairly would have been if only the truth had been told. ’’ He may recover “ the true value of the disputed claim and not the false value. ’’

By the act of the court below, the action has, against plaintiff’s desire, been converted into one on contract — and it must be said in passing that it is very doubtful whether the complaint as so changed states any cause of action. It is, of course, elementary that plaintiff has his own election, in an appropriate case, to sue either on contract or in tort. Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Seabury and Guy, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  