90 N.Y.S. 98 | N.Y. Sup. Ct. | 1904
The plaintiff moves for an order of reference upon the ground that the trial of the action will require the examination of a long account and will not require the decision of difficult questions of law. The defendants resist the motion on various grounds, which will be discussed successively. The first is that the plaintiff, having elected to proceed in tort, cannot now make another election to proceed upon contract for the purpose of obtaining a reference. This objection is urged upon two grounds: The first is .that the complaint itself is founded in tort; but I think an examination of that pleading shows that the defendants are mistaken. While it is true that incidentally certain allegations are made in the complaint as to conversion by the defendants and as to fraudulent conduct, the gravamen of the complaint and the substance of the cause of action are for breach of the contract of employment of the defendants by the plaintiff as commission merchants and brokers for him, and the allegations as to conversion, etc., are merely incidental. Where the gravamen of the complaint is on contract, the fact that there are allegations therein charging tortious conduct on the
So far as the contentions made on the motion to change the place of trial are concerned, it is to be observed that there is more or less shifting of positions on the part of the defendants as well as the plaintiff, but I do not think the decision of so important a motion in the action as this should be greatly influenced by the claims and contentions on either side upon that motion.
Coming now to the argument advanced on behalf of the defendants that the trial of this action cannot, in any event, involve the examination of a long account, I am satisfied of the contrary. The complaint alleges the purchase on the defendants’ part as brokers for the account of the plaintiff of contracts for the purchase of 638,900 bales of cotton for delivery to them for the plaintiff’s account in the month of January, 1903, and that each of such contracts was for the purchase of 100 bales. It is further alleged that the plaintiff was to deposit a margin of one dollar per bale against such transactions, and to renew the same when absorbed to the extent of fifty per cent., there being a further provision that where contracts to sell were made against contracts to purchase, that then, in the event of fluctuations, the losses on the one class of transactions should be offset by the gains on the other class, and that only the difference should be considered
The principle of the decision in the Irving case was sustained in Ames v. French, 83 App. Div. 452. That action was brought by stockbrokers against a customer upon an account stated, the account attached to the complaint showing a dealing in various stocks aggregating an amount of over $236,000. The answer alleged that such account was fictitious, false and fraudulent, and for a counterclaim alleged that the defendant employed the plaintiffs to purchase and sell stocks for him; that they did not execute a large number of his orders, and rendered to him false and pretended statements of transactions of purchases and sales ordered to be made, but which had never, in fact, been made, and prayed for judgment that the plaintiffs be required to account to the defendant for all matters relating to the transactions thus set forth. The reply subsequently denied the allegations of the answer constituting the counterclaim, It was held that the taking of the account between the parties upon which the defense was based involved the examination of a long account that would be impracticable before a jury, and that the court below properly ordered the issues referred. In affirming the order Hr. Justice Ingraham, speaking for a majority of the court (at p. 454), said: “The action being thus upon an account stated, the plaintiffs’ cause of action would be made out by proving the statement of thd account. The defendant, however, attacks the account as having been false and fraudulent, alleging that the amount claimed is not, in fact, actually due- and that the reports and statements upon which the accounts between the parties were accepted by the defendant contained false and fraudulent representations. This is a direct attack upon the correctness of the account rendered by
Motion granted, with ten dollars costs to abide event.