Warsawer v. Hotchkiss

Headnote

Pleading—Motion to Make More Definite and Certain.

In an action for damages, the complaint alleged that the defendant agreed to personally conduct certain transactions in the purchase and sale of stock for one B., plaintiff’s assignor, and that, pursuant to such agreement, B. gave a discretionary order to an agent of defendant to operate in stocks on his account, under the advice of defendant; that defendant did not give such advice; and that the operations by the agent resulted in a loss, which B. paid, in ignorance of the fact that they were conducted without defendant’s advice. Held, that the motion to make more definite and certain, by showing the name of such agent of defendant, would be denied.

Appeal from special term, Kings county.

Action by Newman W. Warsawer against Horace L. Hotchkiss and another. From an order denying certain parts of a motion for a bill of particulars, defendants appeal. Affirmed.

The following is a copy of the complaint:

First. That heretofore, and before the commencement of this action, the cause of action hereinafter set out against the defendants was duly assigned to this plaintiff by an instrument in writing and under seal, for a good and valuable consideration, by one Harvey L. Pence, of the city of New York; and that prior to such assignment, as aforesaid, said cause of action was duly assigned and transferred, for a good and valuable consideration, by an instrument in writing and under seal, • duly executed by one Archibald W. Berks, of the city of New York, in whose favor said cause of action originally accrued, to said Harvey L. Pence. Second. That, upon information and belief, that heretofore, and between on or about the 25th day of July, 1886, and the 3d day of August, 1886, an agreement was made by and between the defendant Horace L. Hotchkiss and said Berks by which said Horace D. Hotchkiss, in consideration of the commissions which he would earn by so doing, agreed with the said Berks to conduct and make transactions of purchases and sales of stock on the New York Stock Exchange, of which, during all of the times hereinafter mentioned, said Hotchkiss was a member, on his best judgment, for the benefit of said Berks; that, in pursuance of said agreement, and relying upon said Hotchkiss’ judgment, which he agreed to use, for the benefit and advantage of said Berks, said Berks, as requested by said Hotchkiss, as he then believed, pursuant to the terms of said agreement, gave a discretionary order to one of the clerks of said Hotchkiss to operate

said Berks’ account on said stock exchange, under the advice and direction ■and upon the judgment of said Hotchkiss. Third. On information and belief, that, relying upon said agreement, and believing that said Hotchkiss was us>ing, and had used, his best judgment, said Berks assented to and accepted •certain losses which had been made by the defendants in transactions for his account between the 25th day of July, 1886, and the 1st day of September, 1886, which losses amounted to the sum- of three thousand and twenty-five •dollars, and all of which accrued and were sustained prior to the 2d day of •September, 1886; and that, when said Berks ascertained that said losses had been made as aforesaid, he was falsely and fraudulently informed by the agent of said defendants that all of said transactions in which losses had •occurred as aforesaid were made pursuant to said agreement, and upon the judgment and advice of said Horace L. Hotchkiss, relying upon which false and fraudulent statements said Berks acquiesced and sustained said losses. Fourth. That, upon information and belief, that thereafter, and in or about the month of June, 1891, said Berks ascertained for the first time that none •of said transactions had been made by or with the advice of said Horace L. Hotchkiss, or under his supervision or direction; that, on the contrary, they were made by the defendant Harvey B. Rich, and two of his clerks, without the authority or knowledge of the said Berks, and while the said defendant Hotchkiss was absent from the city of New York, and without the advice ■or direction of the said Horace L. Hotchkiss, and contrary to the terms of •said agreement between him and said Berks, to all of which said Hotchkiss wrongfully assented, and aided and' abetted said Rich and said clerks in wrongfully withholding the truth from said Berks, by reason of which said ' Berks sustained damage in the sum of three thousand and twenty-five dollars. Fifth. That, upon information and belief, that, at and during all the times herein mentioned, the defendants were copartners in business as stockbrokers and members of the New York Stock Exchange, doing business in the city of New York under the firm name of H. L. Hotchkiss & Co. Wherefore plaintiff demands judgment against said defendants for the sum of three thousand and twenty-five dollars, and interest thereon from September 1, 1886, besides the costs of this action.

Defendant moved that plaintiff be required to deliver a specified bill of particulars, or that the complaint be made more definite and ■certain, by showing as follows:

(1) The dates of the deliveries of the assignments by Archibald W. Berks to Harvey L. Pence and Harvey L. Pence to "the plaintiff, both of which assignments are mentioned in the first paragraph of the complaint. (2) The name of the clerk of Horace L. Hotchkiss to whom the discretionary order was given, as alleged in the second paragraph of the complaint. (3) The items of losses alleged in the complaint to have been made by the defendants in transaqtions between July 25, 1886, and September 1, 1886, amounting to the sum of $3,025, and to have been assented to and accepted by said Archibald W. Berks, and what the particular transactions were, to wit, the purchases and sales in consequence of which said losses arose, together with the dates and prices of the same. (4) The name of the agent of the defendants who gave to said Berks the false and fraudulent information, as alleged in the third paragraph of the complaint. (5) The names of the two clerks of Harvey B. Rich under whose supervision and direction the transactions referred to in the complaint were made, as alleged in the fifth paragraph of the complaint.

The motion was denied as to paragraph 4 thereof.