¶1I think the fourth defense to the plaintiff’s complaint set up onlv a contract. It *221avers an agreement made between the defendant and the plaintiff as his broker; that by virtue of and under this agreement, the plaintiff, after receiving money and other property of defendant, refused to account to defendant, and appropriated the same to his own use, and thereby became “indebted to this defendant, whereby an action has accrued.”. This is a pure contract (Austin v. Rawdon, 44 N. Y., 63; Conaughty v. Nichols, 42 Id., 83).
¶2Even if it was a tort, an action for money had and received has always been permitted when money has been received for converted property.
¶3The order should be reversed, with costs.
¶4Tappen, J., concurred.
¶5Order reversed, with costs