“ Defendant represented in said fall and winter of 1886 that he had purchased said stock for plaintiff, and plaintiff paid him therefor the sum of five thousand four hundred dollars. Said stock gradually rose in value, and in the early winter of 1889 was worth in the market at least nine thousand six hundred dollars, and plaintiff had continued to hold said stock as a paying investment, and has never given instructions to sell the same or dispose of the same.
“ On February 18, 1889, the defendant Hatch failed in business and made a general assignment to his former partner, Bell. ¡Neither at that time, nor subsequently, has the defendant turned over to plaintiff the said stock, nor its value, though he has been requested so to do; nor has he paid to the plaintiff the value of said stock in cash (if said stock had been loaned out prior to said failure). Plaintiff has requested from the defendant an explanation of the fact of his failure so to do, and defendant has failed to inform the plaintiff of the facts relating thereto.
“ The only information which plaintiff has been able to gain on the subject, after long inquiries, is the following:
“ On March 12, 1891, the said Hatch told the plaintiff that he had loaned the said stock prior to his failure; that he had received its cash value from the borrower, and that instead of keeping this cash intact he had used it, prior to the failure, for his own purposes, and hence he was then, and now is, unable either to take up the loan of said stock, to deliver the said stock to me, the plaintiff, or to pay me, the plaintiff, the money which he, the said Hatch, had received from the borrower as a special deposit to secure said stock. The said Hatch failed to give me any further particulars in regard to this matter, and plaintiff has been unable to ascertain.”
It also alleged that plaintiff was wholly without knowledge of the following matters, all of which were within defendant’s knowledge and are material and necessary for plaintiff to know in order to properly frame his complaint: whether the defendant ever actually purchased said stock; and if so, when and at what price and of whom; if it was so purchased, whether or. not it was held for plaintiff between the fall of 1886 and February, 1889, (except as it was loaned out), or whether defendant did not sell said stock and appropriate the proceeds, and if so, when was it sold, to whom and for how much ; if it was held until February, 1889, the time of the failure, whether defendant then held the stock and appropriated it or sold it; if it was loaned out at the time of the failure, whether or not defendant received from the borrower the cash value thereof, and how much this was, who was the borrower, when the loan was made, for how long and on what terms, and if defendant secured such cash value why such stock was not redeemed at the expiration of said loan and said stock turned over to plaintiff, and whether defendant used for his own purposes such moneys either before or after the failure, and also whether or not defendant has now the possession of said stock.
Henry Tompkins, for app’lt; Deming & Logan (Charles M. Demond, of counsel), for resp’t.
—This is an appeal from an order denying a motion to to vacate an order for the examination of the defendant before trial to enable the plaintiff to frame his complaint
It appears from the affidavit upon which the order for the examination was based that the defendant, who was a stock broker, was instructed by the plaintiff to purchase for him 100 shares of the stock of the New Jersey Central Bailroad, and was furnished with the money to pay for the same. Thereafter the defendant loaned the same with the assent of the plaintiff and subsequently failed and made an assignment of his property for the benefit.of his «'editors.
This action is based upon that transaction, but whether the complaint will charge the defendant with a conversion of the-stock after its purchase, or with embezzlement of the money received for the purchase of the stock, or with embezzlement of the money received on a loan of the stock, will depend upon facts, within the knowledge of the defendant and unknown to the-plaintiff.
The affidavit is full and sufficient and states that the deposition of the defendant is necessary to enable the plaintiff to frame his complaint and for use at the trial, and states facts from which it is. readily seen that such statement is true and that the examination is necessary.
It is urged in opposition to the order that the testimony sought, if elicited upon the examination, might subject the defendant to a criminal prosecution, but we can readily perceive that there are-many facts within the knowledge of the defendant which he can disclose with impunity.
And if he desires to plead his privilege he can do so upon the examination.
The case of Kinney v. Roberts, 26 Hun, 166 , is not an authority adverse to this view, because -in that case there was no testimony sought to be elicited from the party except such as would subject him to a criminal prosecution or fender him infamous.
The affidavit being formally correct and the facts sought being entirely with the knowledge of the defendant, we think the order for his examination was proper and valid.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
Barnard, P. J., and Pratt, J., concur.