Fiero v. Paulding — 25 N.Y. St. Rep. 156

Majority

p. 156

William P. Fiero, App'lt, v. James K. Paulding and ano., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Reference—Compulsory—When not ordered—Code Civ. Pro., § 1013.

An action for conversion is not to be referred compulsorially, nor can an answer setting up a defense, involving the examination of a long account, make it so.

Appeal from order granting a motion for a reference under Code Civil Procedure, section 1013.

L. C. & W. P. Platt, for app’lt; Martin J. Keogh, for resp’ts. ■

The complaint is, in form, one for a conversion of personal property. The defendant 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 defendant converted the stocks to their own use. 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., 595 .

It is an action for a conversion, and such an action is not to be referred compulsorially. Camp v. Ingersoll, 86 N. Y., 433 .

If the action be not referable by compulsion, the answer cannot make it so. Untermyer v. Beinhauer, 105 N. Y., 521 ; 8 N. Y. State Rep., 1.

The order should, therefore, be reversed, with ten dollars costs, besides disbursements.

Pratt, J., concurs; Dykman, J., not sitting.