Ruth v. Davenport. will and testament of Samuel Cardwell, Sr., or to either of them, except that an oral demand was made, and in so far as a presentation of the said claim was involved in the bringing of the actions above recited; that the defendants in this action, or either of them, have never offered or refused to refer the claim of the plaintiff as prescribed by law." Section 1835 and 1836 of the Code prohibit the allowance of costs, unless the claim against the estate was duly presented, or the payment thereof unreasonably resisted, or the defendant refused to refer as prescribed by law; either of which conditions existing, the court may, in its discretion, adjudicate costs in favor of the plaintiff (Hopkins v. Lott, 111 N. Y. 579). The general rule, therefore, is that costs shall not be awarded against executors, and it is only in cases where on of the conditions has been fulfilled by the plaintiff that the court has power to award costs. The stipulation shows, as well as the conclusion of the learned trial judge, that two of the three conditions essential to awarding costs were wanting in this casenamely, the presentation of plaintiff's demand to the executors, and the refusal of the executors to refer the claim. This leaves the third, which was the ground upon which the court based its action-namely, that it appeared that the payment of the claim was unreasonably resisted or neglected by the defendant. To sustain this conclusion, it was necessary that the facts should show not only that the claim was presented, but also that the executors unreasonably resisted or neglected its payment. When we consider the fact that the same attorney who appears here also appeared in the former action brought against the executors of plaintiff's original lessor, and that upon such trial the nature, character and extent of the claim were developed, and knowledge thereof brought to these defendants, coupled with the fact that the stipulation itself concedes that an Ruth v. Davenport. oral demand was made, these together, we think, would have justified the conclusion of the learned court that the claim was presented, it not being absolutely essential to comply with this condition that a formal claim should have been presented. Taking, however, the character of the claim itself, it being one for unliquidated damages for injuries to property caused by water coming through a roof, and the fact that the claim made of $3000 was reduced by the recovery had to $300, it cannot be claimed that by a failure to pay the original amount it was unreasonably refused or neglected. It is to be regretted that, in a case presenting the facts such as appeared in this action, we cannot find authority to support the conclusion reached by the learned trial judge; for, after considering the amount of time and labor, and the action pursued by the same attorney who appears here for the defendants, and who appeared in the former trial for the executors of decedent's assignor, in withholding knowledge of the real owners of the property, which necessitated the several trials, and required the plaintiff, without fault on his part, from want of knowledge as to the real party in interest, to pay costs almost equal in amount to the recovery here, these considerations, were it the question of the exercise of a discretion vested in a judge, would here have been rightly and justly exercised in granting costs and allowance. We have been referred to some cases wherein it was held that some slight difference in the amount claimed and the amount recovered did not prevent the granting of costs, but we have found none where, as here, the action was one to recover unliquidated damages, and the amount was reduced from $3000 to $300 as the result of resistance, and such action on the part of the executors in not paying the claim was held to be unreasonable. We regard the law as well settled by a long line of authorities that, when a claim against the estate of a Moffatt v. Fulton. deceased debtor is materially reduced upon the trial, the resistance made by the executor is not unreasonable. Considering, therefore, the nature of the claim itself and the material reduction obtained, we are of opinion, as matter of law, that the court was without power to award costs and grant the allowance, and for this reason, solely, the order and so much of the judgment appealed from should be reversed, without costs. VAN BRUNT, P.J. and INGRAHAM, J., concurred. MOFFATT, APPELLANT, v. FULTON et al., RESPONDENT. COURT OF APPEALS, SECOND DIVISION; MAY, 1892. $549. Pleading-when insufficiency of complaint not properly objected to when defendant may be arrested in action to recover money or property converted. In an action to recover proceeds of certain money alleged to have been converted by the defendants, the objection that there is no express averment in the complaint that the money in question was received by the defendants in a fiduciary capacity cannot first be taken on appeal; such objection is not taken on the trial by a motion to dismiss upon the ground that the first count did not contain facts sufficient to constitute a cause of action, and particularly that it did not set forth facts constituting an action in tort, and that the second count did not set forth facts constituting a cause of action either in tort or on contract, and that the complaint united an alleged cause of action based upon the theory of tort with one on the theory of contract. The amendment of sections 549 and 550 of the Code of Civil Procedure made in 1886, requiring that the facts upon which the right to arrest a defendant in a civil action depend should be stated in Moffatt v. Fulton. the complaint in all cases except the single one provided as a substitute for the old writ of ne exeat, introduced no new rule of pleading into the Code which changed the nature of certain causes of action somewhat by requiring facts to be alleged and proved in addition to those previously required to be alleged or proved in order to recover, and it does not authorize the pleader to allege the conclusions of law instead of the plain and concise statement of facts required by section 481. Where the complaint in an action alleged that the plaintiff intrusted his two notes to the defendants as his agents, to return one with no expense and to discount the other and return the net proceeds to him, they exceeded their authority and discounted both of said notes, received the proceeds and refused to pay them over on demand and converted them to their own use, and this fact was substantially proven on the trial,-Held, that both the allegations of the complaint and the evidence show that defendants had received money of the plaintiff while acting in a fiduciary capacity and converted it to their own use, and that there was no necessity for alleging in express terms in the complaint; that the money had been received in a fiduciary capacity. (BRADLEY and PARKER, JJ., dissenting.) Where it is a necessary inference from the fact alleged in the com plaint that money was received by the defendants in a fiduciary capacity, the statute does not require that it should be labelled by that name. Agency is a fiduciary relation, and property received as agent is received in a fiduciary capacity, and when the property is turned into money, that is also received in fiduciary capacity. Moffatt v. Fulton (56 Hun, 337) reversed. (Decided February 3, 1892.) Appeal from a judgment of the general term of the supreme court in the first judicial department, modifying and affirming as modified a judgment entered on a verdict directed at circuit. This was an action to recover the proceeds of two promissory notes, belonging to the plaintiff, claimed to have been received by the defendants in a fiduciary capacity and converted to their own use. In the first count of the complaint it is alleged that on the 15th of November, 1886, the plaintiff, a manufac Moffatt v. Fulton. turer of New Haven, Conn., gave to the defendants, who were engaged in business in the city of New York, his promissory note for $908.75, payable three months thereafter, in consideration of goods sold and delivered. On the 15th of February, 1887, shortly before said note became due, the plaintiff made another note dated that day, but in all other respects a duplicate of the first, and sent it by his agent, one McDowell, to the defendants with the request that they should indorse it "and have it discounted for cash and remit the funds, less any. reasonable charges for commissions and discount, to plaintiff immediately, so that he might pay the said note of November 15th, about to become due, and to use the proceeds of said note for no other purpose whatsoever. The defendants thereupon informed the said McDowell that they could not have the said note discounted, but if the plaintiff would send them in its place his note for a less amount, paying a portion of the indebtedness represented by the said note of November 15, 1886, they would immediately have the same discounted and remit the proceeds for the purpose above described. Said defendants requested the said McDowell to leave with them said note dated February 15, 1887, and stated that they would inclose the same on that day to the plaintiff in a personal letter explaining the facts, . . . and use said note for no other purpose. Trusting solely to the honesty and integrity of said defendants, said McDowell left said note with them for the purpose of having it returned immediately to the plaintiff and for no cther purpose." The defendants never returned the note, but procured the same to be sold or discounted through a broker to an innocent holder, and on the 21st of February, 1887, received the proceeds of said note, less twentyone dollars and nineteen cents, deducted for commission and discount, "in trust to pay the same to the plaintiff forthwith." They used said proceeds in their own business and refused to pay any part thereof to the plaintiff, |