Dubois v. Sistare — 36 N.Y. St. Rep. 543

p. 543

Louis Dubois, Resp’t, v. William H. H. Sistare, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Pleading—Frivolous answer—Conversion.

The complaint alleged certain dealings between the parties in mining stocks, that defendants held possession of certain stocks belonging to plaintiff; that he had tendered the balance due to them and demanded delivery of the stock; that they had delivered a part thereof but neglected and

p. 544

refused to deliver the remainder. It then alleged “ that defendants have wrongfully detained and converted the same to their own use.” The latter allegation was denied by the answer. Held, that the denial created a material issue, including the liability of defendants to personal arrest, and could not be stricken out as frivolous.

Appeal from an order striking out the defendants’ amended answer as frivolous and for judgment in favor of the plaintiff.

Henry S. Bennett, for app’lt; Alexander B. Simonds, for resp’t.

The complaint sets forth various dealings between the parties in certain mining stocks, and alleging that the defendants held in their possession, for and belonging to the plaintiff, 6,000 shares of the Little Chief Mining Company, 5,000 shares of the Horn Silver Mining Company, and 1,500 shares of the Iron Silver Mining Company. It was also alleged that the plaintiff had tendered to the defendants the balance due to them from him and demanded the delivery of the stock. And that they had delivered to him the 6,000 shares of the Little Chief Mining Company stock, but neglected and refused to deliver the remainder. And the averment is then made “ that the defendants have wrongfully detained and converted the same to their own use. ”

This averment has evidently been made to legally characterize the defendants’ act in neglecting and refusing to deliver the detained shares of stock. It charged a conversion, which before was at most left to mere inference, and may be presumed to have been added to avoid all uncertainty from what had been previously set forth. The object was to implicate the defendants in a positive wrong, for which, if it shall be maintained, they may be personally taken in execution. This was as pointedly denied by the answer which has been stricken out. For its third subdivision in allegation, that the defendants have wrongfully detained and converted the five thousand shares of the Horn Silver Mining Company, and the fifteen hundred shares of the Iron Silver Mining Company to their own use, has been denied. This denial created a material issue, including the liability of the defendants to personal arrest. And it could not regularly be stricken out. Farmers' National Bk, etc., v. Leland, 50 N. Y., 673 . But it should be tried in the ordinary course prescribed for that object.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

It seems to me that the fact that the respondent found it necessary to present so elaborate a upon this appeal shows conclusively that the answer was not frivolous. I concur in the reversal of the order, with costs.

Brady, J., concurs.