| N.Y. App. Div. | Jan 17, 1928
A complaint should contain a plain and concise statement of the material facts without unnecessary repetition
This action is primarily brought to recover the stock certificates of the Lake Meacham Hotel Company from the defendants in whose names they now stand and, to the end that all matters be justly settled between the parties, to have an accounting. In the allegations of facts and the facts fairly implied we have the following: John P. Kellas as attorney purchased this stock for, and with the money of, William C. Rockefeller. Rockefeller was the owner of this stock and John P. Kellas, as the confidential attorney and agent of Rockefeller, had or may have had some beneficial interest in it under the terms of the retainer or agreement under which he acted; under the agreement the certificates of stock purchased were issued in the names of Kellas and his nominees; Kellas received large sums of money from Rockefeller and his representatives for the uses of the hotel company and managed all its affairs; at some time an accounting and settlement should be had between the two;the agreement terminated either during the lifetime of William G. Rockefeller, or at his death; no demand either for the certificates of stock or for a settlement of the account was made by Rockefeller during his life; Rockefeller’s representatives have a right to a settlement of the accounts and a performance of the agreement or retainer by John P. Kellas, an attorney and officer of the court. It does not appear that the retainer or agreement was in writing, nor does it appear that' the representatives of Rockefeller have information as to the terms or nature thereof. It may be implied that John P. Kellas was to have compensation in some form for his services, perhaps cash fees or an interest in the property, or an interest in such profits as may have been made, or in some other form. So far as the complaint shows, John P. Kellas alone knows the claim which he may assert under his retainer or agreement. Upon the argument his attorney avowed that he knew the terms of the agreement. By his answer and in his account he may show it. It is not to be implied that the stock, or the money advanced by Rockefeller, was a gift to John P. Kellas. He was the custodian of the hotel property, and of the funds advanced; he had full control and has received any income had.
The complaint states but one cause of action and contains a concise statement of the material facts “ on which plaintiffs rely.”
The statements in the complaint show that the plaintiffs have no adequate remedy at law. But defendants complain that the plaintiffs have not so alleged. An amendment supplying this omission will not affect any substantial right of defendants and may be allowed at any time. (Civ. Prac. Act, § 105; Allen v. Fink, 211 A.D. 411" court="N.Y. App. Div." date_filed="1925-01-07" href="https://app.midpage.ai/document/allen-v-fink-5276819?utm_source=webapp" opinion_id="5276819">211 App. Div. 411, 415.)
We have examined each of the grounds on which the appellants ask relief and find none which require further discussion.
The order should be affirmed, with ten dollars costs and disbursements.
Cochrane, P. J., Hinman, Davis and Whitmyer, JJ., concur. Order affirmed, with ten dollars costs and disbursements.