Moffat v. Fulton

Bartlett, J. I find it difficult to reconcile the conclusion reached by Mr. Justice Brady in this case (infra) with the decisions of the general term of this department in Hillis v. Bleckert, 6 N. Y. Supp. 405, and Bartlett v. Sutornis, Id. 406. If those cases were correctly decided, it seems to me that the judgment under review on this appeal is erroneous so far as it assumes to authorize the issue of execution against the person of the defendants. The proof made out a case of money had and received. The learned trial judge held that the complaint and evidence sufficed to establish the fact that the money was received in a fiduciary capacity. But there is no such express averment in the complaint; and in Bartlett v. Sutornis, supra, we held that, in an action to recover money, where it was sought to take the defendant’s body in execution on the ground that be had received the money in a fiduciary capacity, the fact that he so received it must be specifically alleged in the complaint. In view of the decisions to which I have referred, I do not see how that portion of this judgment can be sustained which provides for the issue of execution against the person of the defendants. I think the judgment should be modified by striking that provision therefrom, and, as thus modified, should be affirmed, without costs. Van Brunt, P. J., concurs.