Clark v. Ennis — 72 N.Y.S. 1097

Majority

p. 1097

CLARK, Respondent, v. ENNIS et al., Appellants.

(Supreme Court, Appellate Division, First Department.

November 8, 1901.)

Headnote

Action by John N. Clark against Thomas A. Ennis and another. From an order denying defendants’ motion to vacate an order for the examination of the defendants for the purpose of enabling plaintiff to frame his complaint, defendants appeal.

Reversed.

Parker J. Deane, for appellants. Ellis B. Southworth, for respondent.

The - question presented on this appeal is substantially the same as that presented on the appeal in the case of Clark v. Ennis (decided herewith) 72 N. Y. Supp. 581 . We think in this case, as in that, that there is nothing to show that the examination of the defendants was necessary to enable the plaintiff to prepare Ms complaint. In this case, as in that, it appears that the plaintiff ordered certain stocks to be purchased, and that the defendants teported that such stocks had been purchased; and the defendants allege here that such stocks had been purchased for the plaintiff’s account. If the defendants have sold the stock thus purchased for the plaintiff without authority, the plaintiff’s cause of action would be to recover the stock purchased for his account or damages for a conversion thereof. It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

VAN BRUNT, P. J„ and O’BRIEN and LAUGHLIN, JJ„ concur. PATTERSON, J., dissents.