Conn v. Chambers (123 A.D. 298, 1908)

Clarke, J.:

The complaint alleges- that the defendant was the agent of the plaintiff for the sale at the city of New York of divers' musical instruments, accessories and sheet music consigned and delivered to him by the plaintiff for sale and as such agent acted in a fiduciary capacity and had and received the money proceeds of said property; that between certain dates the plaintiff consigned and delivered to the defendant as his certain agent and bailee for sale, divers goods which it was the duty of said agent to sell at agreed prices, and after deducting his certain commissions on such sales to pay over to the plaintiff the proceeds thereof; that the defendant, as the agent and bailee of the plaintiff, did sell to fdivers persons said goods and. did receive therefor moneys, the property of the plaintiff, and after deducting all commissions had in his possession $2,865.09 money and property of the plaintiff, which it was the defendant’s duty to pay over to him; that the plaintiff has frequently demanded said sum, but the said defendant, contrary to his ''duty, ías ágéiithtid bailéé; lYas négió'cted hiiti réfh'séd strch" demands i ánd! wrongfully,, unlawfully áñd fraudulently converted -and upproy priated t.O his own use -the money and property of! this -plaintiff, no «part -of .wMete lias, been-paid-.- ■ -

',T'he anSWer'-"ádiYnttéd that'tile defendant ’sold 'divers ‘inü'sical sQm 'i'tistfitmerits,’’áccessoriés 'arid sheet inúsíc "for and on’behalf' of the plaintiff and that the defendant received:, of the plaintiff "divers goods, but denies the allegations of. the ¡complaint alleging that-Ire acted in a fiduciary capacity, and that-it-was his du,ty5 after .deducting his certain. commissions on such sales,, to pay .over to the. .plaintiff, the' proceeds thereof,