Misc.] Supreme Court, March, 1896. testify. The only other exception referred to on brief of the MCADAM and BISCHOFF, JJ., concur. WILLIAM R. WILDER, Respondent, v. THE NEW YORK BANK NOTE Co., Appellant. (Supreme Court, Appellate Term, March, 1896.) Attorneys Counterclaim for conversion of moneys Evidence admissible under general denial in reply. Where the answer in an action by an attorney for services sets up a counterclaim for conversion of moneys collected by such attorney, the plaintiff may, under the general denial in his reply, show the rendition of services for defendant in other actions and proceedings not embraced in the complaint and that the moneys in question were applied, with defendant's assent, in payment for such services. APPEAL by defendant from judgment of the General Term of the City Court, affirming judgment in favor of the plaintiff at trial term. Lyon & Smith, for appellant. Rudd & Hunt (F. E. Anderson, of counsel), for respondent. MCADAM, J. The action was to recover for services rendered by Rudd, Hunt & Wilder, the plaintiff's law firm, the cause of action having been assigned to him. The plaintiff claimed $417.05, as a balance due for professional services rendered the defendant between March 1, 1891, and the commencement of the action, in prosecuting and defending certain suits and proceedings, and in certain investigations and researches, and for advice in relation thereto and disbursements incurred in connection therewith. The defendant interposed an answer denying various allegations of the complaint and setting up a separate defense and two counter [Vol. 16. Supreme Court, March, 1896. claims for the conversion of certain moneys collected by the plaintiff's firm. The plaintiff, in reply, denied the conversion, and alleged that the moneys were accounted for to the defendant, as stated in the plaintiff's bill of particulars theretofore served on the defendant. In the bill of particulars the plaintiff states that the moneys said to have been converted were appropriated to the payment of certain other services rendered mainly in what is known as the Rand matter. The defendant objected to any evidence as to services in the Rand matter because the pleadings raised no issue in respect thereto, contending that the plaintiff could not in his reply set forth an independent cause of action as to which it could not tender an issue, and that he should have amended his complaint by inserting that item in it, so that issue might have been joined thereon, if he intended to insist upon litigating the same. Cohn v. Husson, 66 How. Pr. 150; Hatfield v. Todd, 13 Civ. Pro. R. 265. As the defendant in its counterclaims had charged conversion of the moneys, the plaintiff, under the general denial contained in his reply, was authorized to put in evidence facts negativing the ownership or conversion alleged. Terry v. Munger, 49 Hun, 563; Robinson v. Frost, 14 Barb. 541; Schoenrock v. Farley, 49 N. Y. Super. Ct. 302; Milbank v. Jones, 141 N. Y. 340; Roemer v. Striker, 142 id. 134. It was, therefore, competent for the plaintiff to show that by the assent of the defendant the moneys alleged to have been converted were absorbed by their application to the extinguishment of an independent debt not embraced in the pleadings. This the plaintiff did and nothing more. In order to justify the application of the money it was proper to show the existence of the account on which it was applied, and this necessitated proof of the services and their value. That proof was made, and the appropriation of the moneys by the plaintiff was found by the jury to have been authorized. Hence, there was no wrongful detention or conversion. Whether the services in the Rand matter were rendered to the defendant corporation or to its president, Mr. Kendall, on his individual account, and whether the $400 alleged in the second counterclaim to have been converted was properly applied thereon, must, on the conflicting evidence, be deemed settled by the verdict in accordance with the plaintiff's theory. The jury, upon evidence sustaining their conclusion, found in favor of the plaintiff for $382.85, thereby awarding him $417.05. the balance claimed, less $72.85, the first counterclaim, allowed by Misc.] Supreme Court, March, 1896. consent, which reduced the balance to $338.20; and this, with $44.65 interest, made up the sum found by them to be due. As the question whether the agreement of June 19, 1891, permitting Kendall to fix the amount of fees to be charged, had been abrogated by one subsequently made, was submitted to the jury on conflicting evidence, and they found thereon adversely to the defendant, no comment thereon is necessary. The defendant moved for a new trial on all the grounds specified in section 999 of the Code; and the order denying the application together with the judgment having been affirmed by the General Term, we are precluded from reviewing the evidence to determine the preponderance. Eckensberger v. Amend, 10 Misc. Rep. 145; 62 N. Y. St. Repr. 479; 30 N. Y. Supp. 915. The case was fairly submitted to the jury; and as there is no merit in the exceptions the judgment must be affirmed, with costs. DALY, P. J., and BISCHOFF, J., concur. PANDIA C. RALLI et al., Respondents, v. THE EQUITABLE MUTUAL FIRE INSURANCE Co., Appellant. (Supreme Court, Appellate Term, March, 1896.) 1. Pleading Parties Agent to collect cannot sue in his own name. The fact that a person is constituted a collection agent does not authorize him, as trustee of an express trust, to bring an action on the claim in his own name. 2. Same-Complaint. A complaint alleged a cause of action in favor of parties other than the plaintiffs upon certain contracts of insurance, and alleged that plaintiffs are trustees of an express trust, "each of said insured, above mentioned in the said policies, having authorized and requested the said plaintiffs to collect and receive from the said defendant all of the unearned portions of the said surrendered policies." Held, insufficient. APPEAL from the affirmance by the City Court of New York, at General Term, of a final judgment entered upon an order overruling a demurrer to the complaint, interposed upon the ground of insufficiency in substance. Supreme Court, March, 1896. [Vol. 16. Chas. Wehle, for respondents. Alex. S. Bacon, for appellant. BISCHOFF, J. The complaint alleged a cause of action in various parties, other than the plaintiffs, against the defendant, upon certain contracts of insurance, and the only manner in which the plaintiffs were sought to be connected with the transaction was through the allegation that "the said plaintiffs, in respect to the policies above mentioned and to the receipt of said unearned premiums, are trustees of an express trust, each of the said insured above mentioned in the said policies having authorized and requested the said plaintiffs to collect and receive from the said defendant all of the said unearned portions of the said surrendered policies." We are not advised by the record as to the grounds upon which the court below became satisfied with the sufficiency of this complaint, and in our opinion there can be no doubt that the pleading is fatally defective, if not, indeed, frivolous. Failing privity of contract or title in the plaintiffs to the demand in suit, the complaint did not state facts sufficient to constitute a cause of action (Bliss's Code Pleading, § 234; Mosselman v. Caen, 1 Hun, 648; Davis v. Mayor, 14 N. Y. 506; Weichsel v. Spear, 47 Super. Ct. 223), and the argument that the objection should have been taken to the capacity to sue is unfounded. As natural persons the plaintiffs, of course, had capacity to sue, in the absence of affirmative allegations to the contrary, and if the demurrer had been placed upon the ground noted, it would have, of necessity, been overruled. Phoenix Bank v. Donnell, 40 N. Y. 412; Fulton Fire Ins. Co. v. Baldwin, 37 id. 651. The allegation of trusteeship was merely a conclusion of law, and not alone thus objectionable; moreover, an erroneous conclusion from the attendant averment upon which it appears to have been based. The fact that a person is constituted a collection agent does not authorize him, as trustee of an express trust, to bring an action upon the claim to be collected in his own name. Pomeroy's Remedies and Remedial Rights, § 174, and cases cited. The plaintiffs were obviously not parties with whom the contracts in suit were made for the benefit of others, nor were they persons Misc Supreme Court, March, 1896. having title to the demand as the real parties in interest. Code Civ. Pro., § 449. The judgments of the court below must be reversed, and the demurrer sustained, with costs to the appellant. DALY, P. J., and MCADAM, J., concur. Judgments reversed and demurrer sustained, with costs to appellant. THE MASON STABLE Co., Respondent, v. MARGARET LEWIS, Appellant. (Supreme Court, Appellate Term, March, 1896.) 1. Livery stable keepers - Lien-Notice to terminate. A notice to a livery-stable-keeper that the person in whose name a horse was left with him is not the owner of the animal and will no longer be responsible for his keep imposes upon the stable-keeper the duty of enforcing his lien, or otherwise asserting his right within a reasonable time thereafter. 2. Appeal Irreconcilable grounds of decision. Where the grounds assigned for the decision are irreconcilable or ambiguous, the appellant is entitled to the benefit of those most favorable to him. APPEAL by defendant from judgment of the City Court, General Term, affirming judgment of the trial term in favor of plaintiff. Coleman & Donohue, for appellant. Cannon & Atwater, for respondent. MOADAM, J. The action was to foreclose a livery-stable-keeper's lien, under chapter 91 of the Laws of 1892, for the care and keep of three horses belonging to the defendant. The defendant admitted that she was the owner of two of the horses, and that they had been kept and cared for by the plaintiff at her request. The contention was over the third horse (designated for convenience the Doyle horse), the defendant denying that it was her property or that it was kept or cared for by plaintiff at her request. It was admitted that the defendant had bought the horse from Doyle & Cook on December 2, 1892, had sent it to |