Fiero v. Paulding , 2 Silv. Sup. 515 ( 1889 )

Barnard, P. J.

The complaint is in form one for a conversion of personal

property. The defendants 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 a certain date, and before that date the defendants converted the stocks to theirownuse. 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. 590. 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. Beihauer, 105 N. Y. 521, 11 N. E. Rep. 847. The order should therefore be reversed, with $10 costs, besides disbursements.