People ex rel. Singer Manufacturing Co. v. McAllister

Per Curiam. There is a little difficulty, we think, in ascertaining from the papers before us, precisely what is the nature of the action which plaintiffs claim to have brought against the defendant. The defendant, it appears, has been acting as agent for the plaintiffs in the sale of sewing machines, [217] and has sold to the amount of $11,900. The action is brought for an alleged balance of $138 92 on the sales, for which, it is alleged, he has refused to account, and has fraudulently converted the same to his own use. If the action is to be regarded as one upon any of the agreements, express or implied, growing out of the contract of agency, it is plain that there was no ground for a capias. The statute ( Qomp. L. § 4,119), authorizes personal actions arising upon contract to be commenced by capias, only to recover damages for any breach of promise to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment. The present is not among the cases enumerated, and therefore, if the action is upon contract, the commissioner was right in discharging the defendant. Is the action brought for a tort? We take it that in any case where a party claims a right to restrain a citizen of his liberty, it devolves upon him to make out a clear case, bringing himself within some rule of law permitting the restraint. The papers before us affirmatively show that the cause of action springs from the relation of agency and presumptively is based upon contract. The plaintiff, however, charges the defendant with the fraudulent conversion of a balance due from him as agent. The charge is in the most general words possible, and gives no particulars. It is precisely such a charge as one party might make against another, when the latter refuses to pay over a balance claimed without, as the other believes, a sufficient reason. We have no reason to suppose from these papers that the particular sum of $138 92 in moneys belonging to plaintiffs was in possession of the defendant, and that without right or pretense of right, he has converted it to his own use. On the contrary, the fair inference we think is, that the case is one where the agent, in violation of his contract of agency, has [218] failed to pay over a balance due. An action for such a balance is clearly an action on contract, and if tbe party sees fit to bring one of tort instead, and to cause a capias to be issued, he must make a showing of facts and circumstances to establish the tort, and not content himself with mere general allegations of wrong which are his own deductions from states of fact not set forth, so that the Court is unable to determine whether there is any ground for the deductions or not. We think there is no ground for a certiorari. Motion denied.