Frick v. Freudenthal

Bischoff, J. The complaint as we read and construe it is, and was intended to he in tort, for the conversion of rents [349] of certain real property alleged to have been collected and received by the defendant as-the plaintiffs’ agent, and not upon contract, for money had and received to the plaintiffs’ use. This is apparent from the allegations that the moneys were received by the defendant in a fiduciary capacity and that he has embezzled and fraudulently misapplied the same to his own use. The purport of these allegations is obvious; it is to enable the plaintiffs to cause the defendant’s arrest pending the action, and to enforce a judgment in their favor by execution against the defendant’s person. Code Civ. Pro., § 549, subd. 2; § 1487, subd. 2. For should these allegations be treated as surplusage, as the defendant contends they may be. (Fyfe v. Jackson, 55 App. Div. 74), since their substantiation by proof upon the trial is material to the plaintiffs’ right of recovery. Code Civ. Pro., § 549, subd. 2. True, the prayer of the complaint in terms demands judgment for a liquidated amount, with interest from a specified date, and not for damages as is ordinarily the case in actions sounding in tort; but the prayer for judgment forms no part of the statement of the cause of action. It may, where the complaint is ambiguous, be resorted to for the purposes of ascertaining the pleader’s intention,, but it cannot control the nature of the action as against a clearly expressed intention to the contrary. The counterclaim did not embody a cause of action “ arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiffs’ claim,” nor was it “ connected with the subject of the action ” (Code Civ. Pro., § 501, subd. 1), and the demurrer thereto was properly sustained. Judgment affirmed, with costs to respondents. Freedman, P. J. and Fitzgerald, J., concur. Juddgment affirmed, with costs to respondents.