#### William H. Wright et al., Respondents, *v.*Edward Duffie, Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

Conversion — The liability of an. agent for the proceeds of goods sold on *commission is*upon contract only — in the absence of a prior order of arrest, a District Court of the city of Hew York cannot in such a case authorize an execution against the body.

An'agreement, by the terms of which a person receives from time to-time the goods of merchants which he Is authorized to sell for their account to customers of his own finding, upon a¡ compensation to him of a percentage of the profits upon his sales, with authority to him to collect-and with a subsequent accountability for the proceeds collected, creates a fiduciary relation.

The failure of the agent to account for the- proceeds of bis sales makes him liable to bis principals in an action upon contract, but does not render him guilty of a conversion.

Where the plaintiffs have not procured a prior order of arrest in such an action, proof :of :such an agreement- and of. a failure to account does not authorize a District Court of the city of New York to direct. a ludgment, under the Consolidation Act (Laws: of 1882, chap. 410, § 1386), permitting the issue of an execution against the body qf the defendant. -

Appeal from a judgment of the District Court of the City of Hew York, for -the eighth judicial district, rendered in favor of the plaintiffs.

Sanders & Gray, for appellant.

George W. Gibbons, for respondents.

*339Beekman, P. J.

The plaintiffs have sued the defendant for conversion, and judgment has been awarded in their favor against him for the full amount claimed. A judgment in such a case carries with it the right to an execution against the body, and the trial justice has accordingly stated in the judgment, as he was required to do in such a case by section 1386 of the Hew York City Consolidation Act, that an execution against the body of the defendant is allowed. As no previous order of arrest had been obtained and executed, it is thus manifest that the judgment was placed upon the ground that a case of conversion had been made out, for upon no other theory of the defendant’s liability could a body execution issue where a prior order of arrest had not been obtained. § 1394, H. Y. City Consol. Act, and § 2895, Code Civ. Pro. In view of the serious consequences attending the recovery of a judgment on this ground, the plaintiffs must be held strictly to their pleading; and unless a case of conversion has been made out, the judgment must be reversed, although the proofs- may show that the defendant is liable for the amount sued for on some other theory.

We are of the opinion that, upon the conceded facts of the case, there was no conversion. The defendant was under an arrangement' with the plaintiffs by which he received from them certain goods from time to time, which he was authorized to sell for their account to customers of his own finding. He had authority, also, to collect the proceeds of such sales, for which it was his duty to account to the plaintiffs. His compensation was measured by a certain percentage of the profits which accrued from the sale so made by him. The relation of the defendant to the plaintiffs was a ' fiduciary one, and his failure to account for the money was a violation of a duty arising out of that relation. It was not a conversion of the proceeds.

In the case of Laverty v. Snethen, 68 N. Y. 522, the court says: “ The question as to when an agent is liable in trover for conversion is sometimes difficult. The more usual liability of an agent to the principal is an action of *assumpsit,*or what was formerly termed an action on the case for neglect or misconduct, but there are cases when trover is the proper remedy.” It has been held that where an agent is authorized to sell property and collect the proceeds, and refuses or neglects to pay over such proceeds, “ an action to hold him upon this liability is an ordinary action on contract,” and not one for a conversion. Walter v. Bennett, 16 N. Y. 250; Conaughty v. Nichols, 42 id. 83; Greentree v. Rosenstock, 61 id. 583.

*340Such, we think, was the form of action which the plaintiffs should have resorted to upon the facts presented by the record. In such á case, where a recovery is had, the plaintiff may also have an execution against the person, provided an order of arrest shall have been previously obtained and executed. .§ 1394, N. Y. City Consol. Act, and § 2895, Code Civ. Pro. It follows from what has been said that the -judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve and Giegerich, JJ., concur.

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