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Fiero v. Paulding

6 N.Y.S. 122 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Barnard, P. J.

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Majority

p. 122
Fiero v. Paulding et al.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

Compulsory Reference—When Ordered—Conversion.
A complaint which alleges that defendants had plaintiff’s brokers buy stocks for' plaintiff, and received payment from them; that it was agreed that the stock was to be held subject to plaintiff’s order until a certain date without further payment; and that before such date defendants converted the stock to their own use,—is in form for a conversion, and a compulsory reference cannot be had, even though the answer sets up a defense which may involve the examination of a long account.
Appeal from special term, Westchester county.
Action by William P. Fiero against James P. Paulding and John D. Smith, There was a judgment for defendants, and plaintiff appeals.
Argued before Barnard, P. J., and Pratt, J.
L. C. t& W. P. Platt, for appellant. Martin J. Keogh, for respondents.

The complaint is in form one for a conversion of personal

property. The defendants had the plaintiff’s brokers buy for the plaintiff certain stocks, and received payments thereon from them. The agreement between the parties was that the stock was to be held subject to the plaintiff’s orders, without further payment, until a certain date, and before that date the defendants converted the stocks to theirownuse. The answer sets up a defense which, if proven, may involve the examination of a long account; but-the character of the action is to be determined by the complaint. Welsh v. Darragh, 52 N. Y. 590 . It is an action for a conversion, and such an action is not to be referred compulsorily. Camp v. Ingersoll, 86 N. Y. 433 . If the action be not referable by compulsion, the answer cannot make it so. Untermyer v. Beihauer, 105 N. Y. 521 , 11 N. E. Rep. 847 . The order should therefore be reversed, with $10 costs, besides disbursements.

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