Majority
p. 515William P. Fiero, Appellant, v. James K. Paulding et al., Respondents. Supreme Court, Second Department, General Term, June 28, 1889.
Headnote
Deference. Compulsory.—An action for conversion is not referable by compulsion, and an answer setting up a defense, involving the examination of a long account, does not make it so.Appeal from an order granting a reference under § 1013 of the Code of Civil Procedure.
L. C. & W. P. Platt, for appellant.
Martin J. Keogh, for respondents.
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
p. 516
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 compulsorily. 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.
Cases cited
- Camp v. Ingersoll 86 N. Y. 433 p. 516
- Untermyer v. Beinhauer 105 N. Y. 521 p. 516