Donovan v. Cornell
New York Court of Common Pleas
Appeal from an order of the General Term of the City Court of New York affirming an order of that court denying a motion to vacate an order of arrest.
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Appeal from an order of the General Term of the City Court of New York affirming an order of that court denying a motion to vacate an order of arrest. The complaint alleged the delivery, between March 30th and April 3d, 1885, by plaintiff to defendant, “who during that time was a commission merchant,” of 170 sheep and lambs to be sold for plaintiff for cash, and after deducting defendant’s commissions of 20 cents a head, to pay the balanee of the price to plaintiff; that defendant sold the sheep and lambs for $724.35, which he received; that his commissions amounted to $35.40, leaving due to…
1Opinion of the CourtJ. F. Daly, J.
[After stating the facts as above].—The complaint alleged a cause of action upon contract. The allegation of conversion of the proceeds of sale was mere surplusage. On the trial such allegation will be disregarded and plaintiff allowed to recover upon contract (Conaughty v. Nichols, 42 N. Y. 83). Even if the complaint alleged that the defendant received the proceeds in a fiduciary'ca*343pacity, no proof of that allegation' would be essential to plaintiff’s recovery ; a ground of arrest, based upon a claim that defendant acted in a fiduciary capacity, is extrinsic to the cause of action. It is not…
2Cases cited15 opinions
- Morris v. . TalcottNew York Court of Appeals · 1884
- Conaughty v. . NicholsNew York Court of Appeals · 1870
- Segelken v. . MeyerNew York Court of Appeals · 1884
- Allen v. . MeyerNew York Court of Appeals · 1878
- Duguid v. EdwardsNew York Supreme Court · 1867
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3Cited by2 opinions
- Meyers v. RosenbackCity of New York Municipal Court · 1893
- Flatow v. Von BremsenCity of New York Municipal Court · 1890