By section 726 of the Code of Criminal Procedure it is provided: “ If a fine imposed be paid before commitment it must be received by the court, and within thirty days after its receipt paid by such court to the supervisor of the town in and for which such court is held.”
By section 728 of said Code it is further provided : “ If the court receiving the fine fail to pay to the supervisor as provided in the last two sections, such supervisor must immediately commence an action therefor against * "x" * ■ the magistrate or magistrates composing the court in the name of his town.”
The defendant, while a justice of the peace of the town of Green Island, received thirty-nine dollars from fines imposed by him, which he failed to pay to the supervisor within thirty days after its receipt, as provided by the section first quoted. The defendant was clearly liable to the plaintiff for money had and received.
The question for determination on this appeal is whether under *263the complaint in this action the jury was justified in finding a verdict for the plaintiff.
The complaint sets forth facts constituting a good cause of action for money had and received. That part of the complaint quoted in italics is independent of the other allegations and could be wholly omitted without affecting its other provisions. Where a complaint contains a statement of facts constituting a cause of action on contract, sustained by proof of such facts, upon the trial a recovery is authorized, although the complaint is in form for conversion. (Conaughty v. Nichols, 42 N. Y. 83.)
Where a complaint sets forth a cause of action ex contractu, an allegation therein of an incorrect legal conclusion having the aspect of a tort does not change the nature of the action. (Greentree v. Rosenstock, 61 N. Y. 583.) These cases have been frequently cited with approval. It follows, therefore, that the judgment of the Justice’s Court upon the undisputed facts in the case for the amount of the fines received to- the use of the plaintiff, was right, and should have been affirmed by the County Court.
We have examined the other objections urged by the defendant, but do not think that they should defeat a recovery by the plaintiff.
The judgment of the County Court should be reversed and that of the Justice’s Court affirmed, with costs in this court and in the County Court to the appellant.
All concurred.
Judgment of the County Court reversed and that of the Justice’s Court affirmed, with costs in this court and in the County Court to the appellant.