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Thereupon this action was brought in which, as might have been expected, the defendant was beaten, and after entry of judgment against him he brought this appeal.

The defendant claims that the sole effect of the withholding of the $7,000 pursuant to the agreement of June 7, 1895, was to give him the authority to pay over to the attaching creditor so much of that money as might be necessary to satisfy his claim and leave him the debtor of Mrs. Leach for the remainder, and that no trust was created in her behalf by his withholding the money, nor did it constitute the setting aside of a specific fund in such a way that, upon a failure to pay it over, he would be responsible for the conversion of it. And he insists that this action is purely for conversion and, therefore, it cannot be maintained. It is not necessary to dispute the correctness of the first proposition of the defendant, because the action is not brought for the conversion of this sum of money. The complaint sets up the transaction; alleges the settlement with the attaching creditors, the amount paid to them, and that after the payment of that amount there remained in the hands of the defendant to pay to the plaintiff the sum of $4,000. It alleges a demand of that sum of the defendant and his refusal to pay it. This constitutes a perfect cause of action upon contract for the failure of the defendant to comply with the terms of the agreement of June 7, 1895. But he complains because, with the statement that the defendant has utterly failed and refused, and still fails and refuses. to pay over to the plaintiff the said sum, or any part thereof, she alleges that he has fraudulently converted and appropriated the sum to his own use. This allegation was entirely unnecessary to the setting out of a cause of action upon contract, it is true, but it does not follow that, because a complaint upon contract contains unnecessary allegations, that such force will be given to them as to change the nature of the cause of action. (Tuers v. Tuers, 100 N. Y. 196.) It is quite clear from a reading of the whole complaint that the theory of it was that the defendant became the debtor of the plaintiff for so much money after the payment of the sum which was to be used to settle the claim of the attaching creditors. The only inference that can be made from the complaint is that the defendant was her debtor for that sum. There is no fair inference that any particular money was left with the defendant, and that he was to

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use that identical money for the purpose for which it was left with him, and return the remainder of the money. The fair construction of it is that he retained so much out of the price with a promise to use it in a particular way; that he was not called upon to devote any particular money to that purpose, but that after retaining it he was still the debtor of the plaintiff, but could satisfy her by the payment of the claim of the attaching creditors and paying to her the difference. There was no such relation between them as called upon him to preserve the identical money and to use that for the purpose for which the same was intrusted to him. While he did assume towards the attaching creditors the relation which, as far as they were concerned, called upon him to devote a portion of this money to the payment of their debt, yet the relation of debtor and creditor, which existed between himself and the plaintiff when he entered into the contract to purchase the stock, was not changed by the contract of the seventh of June, which permitted him to retain in his own hands a portion of the purchase price to be paid over in a particular way. The action was, therefore, not brought for the conversion of this money, but was solely an action upon contract.

It does not seem necessary to consider any other questions raised by the defendant. The judgment was clearly sustained by the evidence and should be affirmed, with costs.

VAN BRUNT, P. J., BARRETT, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Judgment affirmed, with costs.

LOUISE YOUNG, Appellant, v. ADELE W. LEACH, Respondent.

An action to recover damages for perjury, or subornation of perjury, cannot be maintained a discontinuance of an action after perjured testimony has been given — presumption that the testimony would have been disregarded.

An action cannot be maintained to recover damages alleged to have resulted from perjury or subornation of perjury - certainly, the action cannot be maintained where it appears that, during the progress of the trial of the action in which the perjury and subornation of perjury is alleged to have been committed, the plaintiff therein (also the plaintiff in the present action), after the alleged perjured testimony had been given, voluntarily discontinued it, as non constat, but

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that, had the trial proceeded, the court would have disregarded the perjured testimony and rendered a judgment in accordance with the truth; the more so where it appears that the discontinuance, taken in connection with a supplemental agreement executed at about the same time, was intended to be a full settlement of the subject-matter of the litigation.

APPEAL by the plaintiff, Louise Young, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of July, 1897, upon the report of a referee dismissing the complaint upon the merits.

George Putnam Smith, for the appellant.

William J. Lippmann, for the respondent.

MCLAUGHLIN, J.:

This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the perjury, and subornation of perjury, committed by the defendant. The right to recover was based upon a complaint which charged, in substance, that in November, 1894, the plaintiff recovered a judgment in the State of Ohio for the sum of $40,000 against her husband, Henry C. Young, who then was the owner of 141 shares of the capital stock of a Connecticut corporation, the value of which was more than sufficient to satisfy her claim, and that the defendant, with intent to cheat, defraud and prevent plaintiff from collecting the amount of this judgment out of the property of the judgment debtor, induced him to, and that he did, without any legal consideration therefor, transfer such stock to her; and that thereafter plaintiff brought suit in the State of Connecticut against the defendant Henry C. Young and others to set aside this transfer upon the ground that the same was fraudulent and void as to her, which suit, with like intent and for a similar purpose, the defendant defended, and upon the trial falsely testified, and also induced the said Henry C. Young to falsely testify, that she, prior to the rendition of the judgment referred to, purchased the stock in good faith for a valuable consideration, and then was the sole owner of the same; that by reason of the perjury, and subornation of perjury, thus committed by the defendant, plaintiff was compelled to, and did, discontinue her suit and consent that the injunction

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granted therein be vacated, and that she was thereby deprived of the right to subject such stock to the lien of an execution issued on her judgment.

The defendant by her answer denied substantially all of the material allegations of the complaint, except the transfer of the stock, the commencement of the suit in Connecticut, the defense made, the testimony given by her as a witness and the discontinuance of the suit by plaintiff.

The issues raised by the pleadings were sent to a referee to hear and determine. Upon the trial before him it appeared that in March, 1893, Henry C. Young, then the husband of the plaintiff, brought suit against her in Ohio to procure a judgment of divorce on the ground of abandonment; that that suit was defended by her, and that after a trial judgment was rendered in her favor dismissing the petition and awarding her the sum of $40,000 alimony. When this judgment was rendered Henry C. Young was, or immediately prior thereto had been, the owner of 141 shares of the capital stock, the value of which exceeded the amount of plaintiff's judgment, of the Bradstreet Company, a corporation organized and existing under the laws of Connecticut, and which he transferred to the defendant, then known by the name of Adele C. Warner. Shortly after the transfer was made the plaintiff brought suit in the State of Connecticut to set aside the same, and pending the action procured an injunction enjoining and restraining the defendant from disposing of the stock during the pendency thereof. The suit was defended by this defendant, and when it came on for trial she was sworn as a witness in her own behalf and testified, in substance, that she purchased the stock in good faith from Young and paid him a valuable consideration for it. Young was also sworn as a witness, and he testified substantially to the same effect. During the progress of the trial, and before it was terminated, the parties to this action entered into an agreement in and by which that suit was discontinued, the attachment vacated, and the stock sold by the defendant to the plaintiff's attorney, and other personal property also delivered either to him or the plaintiff. At the same time Henry C. Young transferred to the plaintiff his interest in certain real estate situate in Cincinnati, Ohio, and he was released from all further claims upon the part of the plaintiff. At the close of the trial the referee dis

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missed the complaint, and from the judgment entered upon his report this appeal is taken.

We think the judgment should be affirmed for two reasons: First. Because an action cannot be maintained to recover damages for perjury or subornation of perjury. Our attention has not been called to a single anthority which justifies such an action, and we do not believe one can be found. On the other hand, it has many times been decided that an action of this character cannot be maintained; indeed, there seems to me an entire unanimity of judicial opinion on that subject. (Smith v. Lewis, 3 Johns. 157; Ross v. Wood, 70 N. Y. 8; United States v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 91 Cal. 129; Gray v. Barton, 62 Mich. 196; Folsom v. Folsom, 55 N. HI. 78; Cunningham v. Brown, 18 Vt. 123; Dunlap v. Glidden, 31 Maine, 435; Cottle v. Cole, 20 Iowa, 481; Gusman v. Hearsey, 28 La. Ann. 709; Greene v. Greene, 2 Gray, 361; Peck v. Woodbridge, 2 Day, 30; Eyres v. Sedgewicke, Cro. Jac. 601; Dawling v. Venman, 3 Mod. 108). In Smith v. Lewis (supra) the court held that an action would not lie "against a person in this State for suborning a witness to swear falsely in a cause in another State whereby a judgment was given against the defendant in that State contrary to the truth and justice of the case." Smith v. Lewis was decided in 1808, and the principle of law there declared has since been followed or cited with approval in many of the States of the Union, including our own State in Verplanck v. Van Buren (76 N. Y. 259), and is decisive of the question presented. United States v. Throckmorton (supra) is also directly in point. This suit was brought for the purpose of setting aside a decree of confirmation of a Mexican grant upon the ground that the same was procured by fraud and perjury. In the Circuit Court the demurrer to the bill was sustained and a judgment thereupon entered dismissing it. In affirming this judgment the Supreme Court of the United States stated the reason for its action: "That the mischief of retrying every case in which the judgment or decree rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases."