Farwell v. Boody

The complaint alleges that the plaintiff was the owner and entitled to the immediate possession of 1,100 shares of the capital stock of the Peoria "and Eastern Railway Company, of the valué of $110,000, and that between the 1st day of July, 1903, and the 1st day of November, 1903, the defendants, at the city of New York, being then in possession of said stock and the certificates therefor, unlawfully converted and disposed of the same to their own use and to the plaintiff’s damage in the sum of $50,000.

The answer was in form a general denial, and the defendants made an application to l'equire the plaintiff to serve a bill of particu*494lars. This motion was granted, and the plaintiff appealed from the 4th and 5tli clauses of the. order, which required her to state the date when the plaintiff delivered or parted with the possession of said certificates of stock and each of them, or the date when such certificates of stock arid each of them were taken from the possession of the plaintiff without her consent, specifying whether such certificates of stock were delivered by the plaintiff or were taken from her possession without her consent. The plaintiff, in opposition to this motion, submitted an affidavit which stated that it. was impossible for her to furnish these particulars for the reason that she did not voluntarily part with such possession, but such certificates were taken from her .possession without her consent.

" I do not think that the plaintiff should be required to furnish these.particulars. The- complaint is based upon a conversion of the stock by the defendants, but there is no allegation that the plaintiff ever had possession of the stock, or that the stock was taken from her possession or control. She is entitled to maintain .the action on proving'that she was. entitled to the possession of the stock and that the defendants converted it to their own use.

The order should be modified by striking out the 4th and 5th clauses, and as modified affirmed, with ten dollars costs and disbursements to the plaintiff.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to the plaintiff. Order filed.