Aaron Bernhard, Appellant, v. Sigmond G. Seligman, Respondent

Aaron Bernhard, Appellant, v. Sigmond G. Seligman, Respondent. (Argued March 11, 1873; decided June term, 1873.) The complaint in this action alleged in substance that defendant falsely and fraudulently represented that he was authorized and employed by one Cahn to purchase of plaintiff certain goods and forward the same, and that said Cahn, on receipt thereof, would immediately remit the price; that plaintiff, induced by said representations, delivered the goods to defendant to be so forwarded, but that defendant did not forward them, but unlawfully converted them to his own use, etc. The evidence on the trial showed that defendant was the agent of Cahn, and purchased the goods as such, and that he did send the goods to Cahn. It appeared, however, that Cahn remitted the pay for the goods to defendant, but that defendant did not pay it over. The complaint was dismissed; plaintiff claimed that he was entitled to a verdict for the sum remitted as for money had and received. Held, that the dismissal was proper, as to allow a recovery would be to change the action from one in tort to one upon contract, which could not be tolerated. As to whether plaintiff could have recovered had he brought his action distinctly for the money forwarded by Cahn to defendant, quere. (See Ætma Nat. Bh. v. Fov/rth Nat. Bh., 46 N. "Y., 82; Hall v. Lauderdale, 46 N. Y., 70.) G. Bainbridge Smith for the appellant. R. C. Elliott for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for affirmance. All concur. Judgment affirmed.