and 132 New York State Reporter the absence of special circumstances, in an action for conversion of personal property, the value of the property at the time of such conversion; with interest, is the measure of damage. This is fair to both parties. It compensates the one for the loss sustained, and compels the other to pay that loss for the wrong committed. Matthews v. Coe, 49 N. Y. 57; Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507; Ormsby v. Vermont Copper Mining Co., 56 N. Y. 623; Parsons v. Sutton, 66 N. Y. 92; Barnes v. Brown, 130 N. Y. 372, 29 N. E. 760; Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032. No special circumstances were alleged in the complaint, nor were any facts proved upon the trial to take this case out of the general rule. The plaintiff was entitled to recover, if at all, the value of the skins at the time the conversion took place, together with interest thereon to the time of trial. He was not entitled to recover their highest value between the time of conversion and the time of trial. I have been unable to find a single authority in this state which sustains the instruction given other than Markham v. Jaudon, 41 N. Y. 255, which was expressly overruled by Baker v. Drake, supra. Flagler v. Hearst, 91 App. Div. 12, 86 N. Y. Supp, 308, relied upon by the trial court, does not sustain it. That was an action for the conversion of a yacht, which was afterwards returned to the plaintiff, who had a recovery, and defendant appealed. One of the errors alleged as calling for a reversal of the judgment was that the jury had been erroneously instructed as to the measure of damage. The trial court laid down the rule that the plaintiff's measure of damage was the value of the use of the yacht and the damage that she had suffered during the time she was in possession of the defendant. This was held to be erroneous, and for that reason a new trial was ordered; and, while there are expressions in the opinion to the effect that the plaintiff was entitled to recover the highest value of the yacht from the time the conversion took place to the time of the trial, such expressions have no binding force except as applied to that case. A decision has no binding force except in so far as it determines the question then before the court. This rule was reiterated by the Court of Appeals in the recent case of Crane v. Bennett, 177 N. Y. 106, 69 N. E. 274, 101 Am. St. Rep. 722, where the court said: "It was not our intention to decide any case but the one before us, and our opinion should be read in the light of that purpose. If, as sometimes happens, broader statements were made, by way of argument or otherwise. than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion, and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant, and, when it wanders from the point at issue, it no longer has force as an official utterance." Besides, in the Flagler Case there were special circumstances which took it out of the general rule. But it is urged by the respondent's counsel that, even if the instructions of the court as to the measure of damage were an incorrect statement of the law, nevertheless the judgment ought not to be reversed. because such instructions could not have had any effect upon the verdict. What is claimed in this respect is that the evidence offered by the plaintiff tended to show the value of the skins at the time the conver sion took place, and not at a subsequent date; that the only evidence of value of any other date than the date of conversion was introduced by the defendants, and for the most part consisted of proof of the disposition of the goods at a later date, which showed a value slightly less as to the M. H. S. C. V. skins, and much less as to the D. R.; and, as the highest value proved was of the date of the conversion, it was immaterial that the jury should be instructed, if they found a conversion, they should award the highest value between the date of conversion and the date of trial. This reasoning is plausible, but not sound. The value of the goods, as already said, was one of the serious questions litigated. Plaintiff was not entitled to the highest value, but to the actual value of the goods at the time the conversion took place, and, in determining what such actual value was at the date the conversion took place, the jury had a right to consider-indeed they were bound to consider—all of the evidence offered by both parties bearing on that subject, and this included what the skins brought when sold. Parmenter v. Fitzpatrick, supra. The instructions practically withdrew from the jury the defendants' evidence bearing upon the subject of value, and left simply the plaintiff's evidence to be considered, because that established the highest value. The jury could not, under the instruction, weigh all the evidence, and from that determine what the value was at the time of the conversion. The case was submitted to the jury upon an erroneous theory as to the measure of damage. The instructions permitted them to award damages to which the plaintiff was not entitled. That the defendants were prejudiced by these instructions is sufficiently evidenced by the verdict rendered, and therefore justice requires there should be a new trial. The judgment and order appealed from is reversed, and new trial ordered, with costs to appellants to abide event. All concur. 111 App. Div. 613.) LANGE et al. v. SCHILE. (Supreme Court, Appellate Division, First Department. March 9, 1906.) 1. ACTION-NATURE AND FORM-CONTRACT-REPORT. The complaint alleged that plaintiff's testator had placed a sum of money in defendant's hands for the purpose of paying claims which might be established during testator's absence, or of restoring to him the money on his return if the same had not been paid out, and that on the return of plaintiff's testator he requested defendant to pay claims owing by him. It then alleged that plaintiff made a demand for the return of the amount remaining in defendant's hands, and that the said defendant wrongfully and unlawfully refused to turn over and pay to the plaintiff the said amount, and converted the same to his own use. Held, that the action was not in tort, but for money received. 2. SAME. If the cause of action set forth is doubtful or ambiguous, every intendment is in favor of construing it as being an action ex contractu. [Ed. Note. For cases in point, see vol. 1, Cent. Dig. Action, § 163.] Appeal from Special Term, New York County. Action by Frederick Lange and others against Romeo H. Schile. 98 N.Y.S.-6 and 132 New York State Reporter From an order affirming the taxation of costs by the clerk, and dismissing an appeal to the special term therefrom, defendant appeals. Reversed. Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKE, JJ. E. W. S. Johnston, for appellant. PATTERSON, J. The court at Special Term denied a motion made by the defendant for a retaxation of costs, and affirmed the taxation of such costs by the clerk of the city and county of New York, who allowed the plaintiff the amount of $25 as costs before notice of trial. The defendant insists that such costs should have been taxed at $15. Whether the one or the other amount should be allowed depends upon the nature of the action, namely, whether it is upon contract or in tort. Section 3251, Code Civ. Proc. In support of the order, it is insisted by the respondent that the averments of the complaint set forth a cause of action for the conversion of money belonging to the plaintiff's testator. The allegations of that pleading are that Henry J. Schile, plaintiff's testator, in June, 1900, gave into the possession of the defendant moneys amounting to the sum of $1,317.74 "The defendant agreeing to deposit the same in a trust company, and to apply the same to the payment of certain claims and liens which had been filed against real property owned by the said Henry J. Schile in the city of New York, and which were then being litigated, in the event of said litigation terminating prior to the return of the said Henry J. Schile to the city of New York; and if the litigation had not then terminated, or if it had terminated and the defendant had not paid over the said moneys, then to return the said amount, with such interest as had accrued thereon, to the said Henry J. Schile upon his return, as aforesaid." The plaintiff then proceeds to state in the complaint that on the 1st of September, 1900, Schile returned to the city of New York; that the defendant at that time had possession of the money, and that Schile then requested the defendant to pay claims owing by him (Henry J. Schile); that such payments were made so as to reduce the sum in the defendant's hands to $3,012.62. After setting forth the death of Henry J. Schile and the appointment of the plaintiffs as executors, the complaint contains the allegation that the plaintiffs made a demand for the return of the amount remaining in the defendant's hands, but that the said defendant wrongfully and unlawfully refused to turn over and pay to the plaintiffs the said amount, and converted the same to his own use, to the damage of the plaintiffs, as executors, as aforesaid, in the sum of $3,012.62; wherefore the plaintiffs demanded judgment for that sum of money, with interest. The contention of the respondent is that this complaint charges that the defendant, acting in a fiduciary capacity, charged with a specific duty concerning the moneys in his hands, violated his trust, and converted those moneys to his own use. It is quite apparent from the allegations of the complaint that if a particular duty devolved upon the defendant, in the first instance, of paying claims which might be estab lished during plaintiffs' testator's absence, or of restoring to him the money on his return from Europe, that relation to the matter was changed when Henry J. Schile did return; for under his direction, and at his request, some of the money was withdrawn and paid to his creditors, and the balance remained in the defendant's hands. That situation would indicate that the defendant merely neglected to pay over a balance of moneys remaining in his hands belonging to the plaintiffs' testator, and the addition in the complaint of the words that the defendant "converted the same to his own use" does not characterize the cause of action, but is to be regarded as surplusage. Segelken v. Meyer, 94 N. Y. 484, and cases there cited. The cause of action is for money received. It is not to be assumed that by the insertion of the words quoted in the complaint the pleader has declared in tort. At all events, if the cause of action set forth is doubtful or ambiguous, every intendment is in favor of construing it as being an action ex contractu. Goodwin v. Griffis, 88 N. Y. 629. See, also, Foot v. Ffoulke, 55 App. Div. 617, 67 N. Y. Supp. 368; Cohn v. Beckhardt, 63 Hun, 333, 18 N. Y. Supp. 84; Reed v. Hayward, 82 App. Div. 417, 81 N. Y. Supp. 608; Town of Green Island v. Williams, 79 App. Div. 263, 79 N. Y. Supp. 191. On the trial of this cause the statement that the defendant converted the money to his own use could have been disregarded, and a recovery had on the other allegations of the complaint, as in an action for money had and received. Town of Green Island v. Williams, 79 App. Div. 263, 79 N. Y. Supp. 791. On such a complaint an execution against the person could not issue. In an action of tort the plaintiff cannot recover unless the tort be actually proven, but under this complaint a recovery could be had upon the other allegations contained therein. In Britton v. Ferrin, 171 N. Y. 235, 63 N. E. 954, the complaint was exclusively in tort, and in Moffatt v. Fulton, 132 N. Y. 507, 30 N. E. 992, the allegations of the complaint were also held to constitute an action in tort. We are therefrom of the opinion that the order appealed from should be reversed, and the costs before notice of trial should be taxed at $15. Order reversed, with $10 costs and disbursements, and the item of costs in question allowed at $15. All concur. (111 App. Div. 558) PEOPLE v. LEWIS et al. (Supreme Court, Appellate Division, First Department. March 9, 1906.) 1. INDICTMENT-COUNTS-REFERENCE-WAIVER OF OBJECTIONS. Where, at the beginning of the trial on an indictment containing three counts one for burglary in the third degree, one for grand larceny in the first degree, and one for receiving stolen goods-the District Attorney was granted permission to withdraw the counts for burglary and larceny, and defendant made no objection to the third count until after he was convicted, he thereby consented that the first and second counts might be retained, to explain the reference contained in the third count, and thereby to include essential allegations of time and place. 2 SAME-COUNTS-SUFFICIENCY. The purpose of an indictment containing several counts, some of which are abandoned, to inform the defendant at the time he is arraigned of the and 132 New York State Reporter crime of which he is accused, as required by Code Cr. Proc. §§ 285, 542, 684, is accomplished if the count or counts under which the trial proceeds fully state the facts constituting the crime, either directly or by reference to preceding counts. [Ed. Note. For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 270, 2702. Appeal from Court of General Sessions, New York County. David Lewis and others were charged with receiving stolen goods, and from an order granting a motion in arrest of judgment, filed by defendant Lewis, the people appeal. Reversed. Argued before O'BRIEN, P. J., and McLAUGHLIN, INGRAHAM, CLARKE, and HOUGHTON, JJ. Robert C. Taylor, for the People. MCLAUGHLIN, J. The defendant, with others, was tried upon an indictment containing three counts, charging him with (1) burglary in the third degree, (2) grand larceny in the first degree, and (3) receiving stolen goods. At the beginning of the trial, upon motion of the District Attorney, the court granted permission to withdraw the counts. of grand larcency and burglary, and the trial then proceeded under, and the case was submitted to the jury on, the third count. The defendant was convicted, and thereupon made a motion for arrest of judgment, which was granted, and the people appeal. The motion was granted, as appears from the statement of the learned trial judge, and the briefs presented, upon the ground that the third count, under which the trial and conviction were had, standing by itself, did not state facts sufficient to constitute a crime, and the defects in the indictment were not cured, notwithstanding reference was made to the preceding counts, which set out the material facts omitted in the third count, under the authority of People v. Werbin, 27 Hun, 311. If we were disposed to follow the Werbin Case, which we are not, it would not be difficult to distinguish it from the case now before us. The indictment was found and the indictment had in that case prior to the adoption of the Code of Criminal Procedure, which provides (sections 285, 542, and 684) that an indictment is not insufficient, nor is the trial, judgment, or other proceeding affected, by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits, and that all technical objections must be disregarded which do not prejudice the defendant in such respect. There the defendant was indicted for arson. There were three counts in the indictment, two of which were abandoned by the entry of a nolle prosequi. Immediately upon such entry being made, defendant's counsel moved to discharge the defendant, upon the ground that the third count was insufficient. The motion was denied, and on appeal the court held that the effect of the nolle prosequi was to strike out the first and second counts; that, those counts having been in effect expunged, the third count was insufficient, because its essential elements of time and place rested upon reference to allegations in that respect contained in the other counts. The Code of Criminal Procedure |