Per Curiam.
Under the decisions in Moffatt v. Fulton, 132 N. Y. 507, and Davis v. Aikin, 85 Hun, 554, particularly the former, the action, notwithstanding the omission of the allegation that the moneys were received by the defendant in “ a fiduciary capacity,” was in form ex delicto, andthe counterclaims arising on contract not "connected with the subject of the action were properly disallowed by the referee. The referee, howevfer, properly allowed the defendant credit for matters - pleaded by way of counterclaim which pertained to the real estate from which the collections were made, since these were connected with the subject of the action.
We find no error in the rulings and the judgment must be affirmed, with costs.
Present: Freedman, McAdam and Gildersleeve, JJ.
Judgment affirmed, with costs.