Fuller v. Tuska — 37 N.Y. St. Rep. 677

Majority

p. 677

George W. Fuller, Jr., Resp’t, v. David S. Tuska, App’lt.

(City Court of New York, General Term,

Filed February 17, 1891.)

Headnote

Pleading—Action for damages for conversion of stock—Demand NOT NECESSARY.

A complaint alleging the loan of certain stocks to defendant, his failure to return them, and an acknowledgment of indebtedness to the amount of the damage sustained by plaintiff, and demanding judgment for such amount, sufficiently sets forth a cause of action. In such a case no demand of the stock is necessary, and the commencement of the action is a sufficient demand for the money.

Appeal from interlocutory judgment entered on order overruling demurrer, etc.

B. Tuska, for app’lt; W. W. Fuller, for resp’t.

The complaint alleges that the plaintiff loaned to the defendant 150 shares of the stock of the Chicago, Milwaukee & St. Paul Railroad Co., which the defendant failed to return, to plaintiff’s damage $744.35. That the defendant thereupon acknowledged an indebtedness to the plaintiff to that amount on the transaction stated, paid on account thereof $1.30, leaving $743.05 due. The defendant demurred, on the ground that the-complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled at special term and properly so. The complaint in substance shows, that after the defendant failed to return the borrowed stock, and acknowledged in consequence his liability in the form of an indebtedness for $744.35, the plaintiff waives the tort and sues upon the contract to pay this amount of money. No demand for the stock was necessary under such circumstances, and the commencement of the action is a sufficient demand for the money. The Code has done away with all technical rules of pleading, and nothing more need be alleged than is necessary to be proved. Code, § 518 ; Mann v. Morewood, 5 Sandf. at page 564; Glenny v. Hitchins, 4 How. Pr., 98 ; Oswego Co. v. Rust, 5 id., 390. And the complaint sufficiently sets out the cause of action. It follows, that the demurrer was properly overruled, and that the interlocutory judgment must be affirmed, with costs.

McGown and Fitzsimons, JJ., concur.