I think the complaint in the action of Densmore v. Benoit is not to be regarded as one in an action to recover damages for fraud and deceit, but that the allegations contained therein respecting false statements and representations are statements of fact constituting reasons why ex aequo et bono the' defendant should restore to the plaintiffs the money the latter had collected from tenants of the premises mentioned in that complaint. The precise, claim of the plaintiffs, as stated in that complaint, is that they demanded of the defendant, the sum of money mentioned in the complaint; that the defendant • refused and neglected to pap the same and that the same “is now due and owing from defendant to plaintiffs with interest.” From the structure of this complaint,, it seems to me that it miist be. regarded as sounding in contract and not in tort; but if it were at all doubtful and . the complaint ambiguous, every intendment is in favor, of construing it as- being an action ex .contractu. (Goodwin v. Griffis, 88 N. Y. 629; Foote v. Ffoulke, 55 App. Div. 617; Reed v. Hayward, 82 id. 416; Town of Green Island v. Williams, 79 id. 263.)
Ingraham and Clarke, JJ., concurred.