
    SUTTON against DE CAMP.
    
      New York Common Pleas, Special Term;
    
    March, 1868.
    Arrest.—Fiduciary Capacity.
    Commission merchants who sell goods for consignors on an agreement to guarantee the payment of the price on such sales, for a commission, do not receive the price in a fiduciary capacity, within the meaning of the provisions of the Code of Procedure; and are not liable to arrest in an action by the consignor to recover the sums so guaranteed by them.
    
    
      Motion to vacate an order of arrest.
    The defendants were commission merchants and auctioneers, and the plaintiffs consigned to them dry goods to be sold by them at public auction, the defendants’ commissions being five per cent, on the gross sale, to wit: two and one-half per cent, for the sale, two per cent, for a guaranty, and one-half per cent, cost for cataloguing the goods.
    The defendants were to have ten days to account to their consignors.
    The defendants gave various credits to the purchasers of the goods, and before these credits expired they were compelled to suspend, and the credits passed to their assignee in bankruptcy as a part of their assets. The defendants swore that they had not received any part' of the proceeds of the sale of the plaintiff’s goods.
    
      
       Compare Clark v. Pinckney, 50 Barb., 226; Duguid v. Edwards, Id., 288. ’
    
   Brady, J.

The defendants were auctioneers, but received a commission to guarantee the sales made by them. Some of the sales were on a short credit and the amounts due have not been-collected. When a guarantee is given as in this case, the auctioneer becomes the surety, and his fiduciary character does not exist, if at all, until the receipt of the moneys which he has obligated himself to pay.

The word “fiduciary,” as applied under the Code, embraces trusts reposed, relations which involve the receipt and payment of money belonging to another over to him, not the receipt of money upon a transaction where the recipient has bound himself to pay the debt, whether it be received by him or not. In this case, the defendants were engaged to sell, and were paid a commission to guarantee the payment of the sums to be paid on such sales as might be made. This arrangement authorized the defendants to mingle the money paid with their own, and they became general debtors to the plaintiffs.

I think the order of arrest must be discharged.  