Opinion
January 18, 1907.
Erskine C. Rogers, for the appellant.
Robert N. Wilson, for the respondent.
The County Court was of the opinion that the trial in the Justice's Court had proceeded on the theory that the action was one for conversion and not upon a contract. If that supposition was correct the reversal was right, as no cause of action in tort was proven. But we are unable to see from this record that the action was tried solely as one for conversion. The complaint in the first paragraph states a complete cause of action upon contract. This cause of action was supported by sufficient proof upon the trial. It is true that in the other paragraphs of the complaint an attempt is made to state a cause of action in tort, and some proof upon the trial was given tending to support such a cause of action, but much proof that was apparently offered on that phase of the case was excluded by the justice, and there was a complete failure to prove a cause of action in tort. The action, therefore, appears to be clearly within that class of authorities which hold that where a complaint contains a statement of facts constituting a cause of action upon a contract which is sustained by proof, a recovery is authorized, although the complaint also contains allegations of a tort. ( Fowler v. Abrams, 3 E.D. Smith, 1; Conaughty v. Nichols, 42 N.Y. 83; Cohn v. Beckhart, 63 Hun, 333; Dodge v. Eckert, 71 id. 257; Town of Green Island v. Williams, 79 App. Div. 260; Booth v. Englert, 105 id. 284.) The allegations of tort in such cases are regarded as surplusage.
There having been the allegation and proof of a complete cause of action upon contract, entirely separate and distinct from the attempt to allege and prove a cause of action in tort, we think the judgment rendered by the justice was authorized and should not have been disturbed.
The provision of subdivision 4 of section 549 of the Code of Civil Procedure, cited by the respondent, has no bearing on the question, as that relates only to actions in the Supreme Court, the City Court of the city of New York or a County Court (Code Civ. Proc. § 3347, subds. 4, 5), and the trial here was in a Justice's Court.
The judgment of the County Court should be reversed and that of the Justice's Court affirmed, with costs in this court and in the County Court to the appellant.
All concurred; PARKER, P.J., not sitting.
Judgment of County Court reversed and that of Justice's Court affirmed, with costs in this court and in the County Court to the appellant.