#### Robert Starr et al., Respondents, *v.*Harris Silverman, Appellant.

(Supreme Court, Appellate Term,

March, 1898.)

Conversion — A contract not creating an agency — Failure to prove a conversion.

In an action .for a conversion, it appeared that, after the defendant had guaranteed to the plaintiffs sales of tobacco made and to be made by them to a third party, ¡the litigants agreed that the third party should deliver to the defendant a certain number of cigarettes,' at a price fixed per thousand, and that a part of the price per thousand should be paid to both the plaintiffs and the defendant. The defendant Retained the whole sum.

Held, that the contract did not constitute defendant the agent of the plaintiffs, but created only a contract liability.

That the action for a conversion was not sustained by miere proof of the contract and its breach.

Appeal by the defendant from a judgment of the District Court in the City of New York, for the fourth judicial district rendered in favor of the plaintiffs for $150 and costs, by the justice thereof, without a jury.

The nature of the ¡action and the material facts are stated in the ’ opinion.

George H. Epstein, for appellant.

Jacob Rieger, for respondents.

*152Giegerich, J.

This action was brought for the conversion of' $150, under the circumstances hereafter detailed. The answer Was a general denial, and a counterclaim for $485 was interposed.

On January 30, 1897, the defendant signed a paper writing whereby he guaranteed the payment to the plaintiffs of the sum of $300 for tobacco purchased, or to be purchased, from them by one Henry Goldman. Thereafter, and with a view (of paying the ■ indebtedness of Goldman, the parties litigant agreed, that Goldman should deliver to the defendant 150,000 cigarettes at the rate of $4.55 per 1,000, $2.55 of which was to be paid to Goldman and $2 to the plaintiffs; it being agreed that the said sum of $2 on each 1,000 cigarettes be deducted from the said purchase price in - order to liquidate such indebtedness.

There is a conflict of testimony upon the question whether or - not the $2 on each 1,000 cigarettes was to be paid upon, ■the delivery of all, or part of, the goods, and there was, likewise, a conflict respecting the alleged tender by the plaintiffs to the defendant of 78,000 cigarettes, which Goldman had delivered to the ■former, by reason of the defendant’s failure to pay the agreed price thereof. Pursuant to the said understanding, Goldman delivered to the defendant 75,000 cigarettes for which he was paid at the rate of $2.55 per 1,000, the defendant neglecting and refusing, however, to pay plaintiffs the $2 on each 1,000 cigarettes, amounting to $150, for the recovery of which sum the plaintiffs have brought this action. '

Assuming, from the judgment, that the justice found that the said sum of $2 was payable on each 1,000 cigarettes, when delivered, I fail to ¡perceive how the refusal to pay the same affords, the plaintiffs the right to maintain an action for conversion. The agreement did not constitute the defendant the agent of the plaintiffs in respect to the $2 so to be paid on each 1,000 cigarettes, nor did' it create a fiduciary relation on the part of the former towards the latter. It was, to my mind, simply an agreement to pay a certain sum upon the delivery of goods, the remedy for nonpayment -of which being in form *ex contractu*and not *ex delicto.*

The action having been brought for a conversion, it was not sustained by mere proof of a contract and its breach (Walter v. Bennet, 16 N. Y. 250; Whitcomb v. Hungerford, 42 Barb. 177; Abbott’s Tr. Ev., p. 626), and, hence, the exception noted to the refusal" of the justice to dismiss the complaint was well taken.

*153In my opinion, the justice also erred in excluding questions put to the plaintiff, Nathan Starr, on cross-examination, with a view of ascertaining the amount due plaintiffs from Goldman on the guaranty when the; arrangement for the delivery of .„the 150,000 cigarettes was made.

For these reasons, to my mind, the judgment should be reversed, and a new trial .ordered in the Municipal Court, borough of Manhattan, fourth district, with costs to the appellant to abide the event.

Beekman, BP. J., and Gtldersleeve, J., concur.

Judgment reversed, and new trial ordered in Municipal Court, with costs to appellant to abide event.