Ibled v. Koehler

The defendant appeals from an order denying a motion to vacate an order of arrest. The complaint contains three counts, in one of which the plaintiff sues in his own right, and in the other two as assignee of others. The complaint alleges that the defendant received from each of certain French merchants a sum of money or (in one case) certain merchandise to be expended in advertising, and that he “ did not apply said sum * * * or any substantial part thereof to the express purpose for which he had received it irom plaintiff, namely, to advertise plaintiff’s merchandise, but on the contrary appropriated and converted the same to his own use.” The complaint wholly lacks the allegations necessary to charge a conversion, and neither the complaint nor affidavit states, nor can it be spelled out from them, how much defendant owes. It is not alleged that defendant received the money or goods in a fiduciary capacity, nor do the contracts show it. They are contracts for the sale of merchandise to defendant, plaintiff and his assignors agreeing to bear the cost of advertising up to a certain sum. It is not alleged that defendant represented that he had expended any particular sum, and *497upon such representation received payment. The allegation is that certain sums were sent to him to be expended in advertising and that he has not, as yet, spent all that was sent him. "This may give plaintiff a right to recover back whatever has not been spent, but it does not imply fraud or the violation of a fiduciary duty.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred;

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.