Marshall P. Stafford, for appellant.
Delos McCurdy, for respondent.
We do not think it necessary to take this case under further advisement. It seems to us that the election by the plaintiff of a cause of action in tort made it necessary for him to show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion. There is no pretense that there was a demand of this money made at any time. Besides, it is admitted that there was a reciprocal interest in the money, and hence they were tenants in common of it, and an action for conversion cannot be maintained under such circumstances. McMahon et al. v. Rauhr, 47 N.Y. 67 et seq.
The judgment must be affirmed, with costs.
Present: BOOKSTAVER, BISCHOFF and PRYOR, JJ.
Judgment affirmed, with costs.