190 A.D. 108 | N.Y. App. Div. | 1919
There were two orders at Special Term upon the application of the two defendants for judgment upon the pleadings which consisted of the complaint and a demurrer upon the ground that the complaint did not state a cause of action. Inasmuch as the defendants demurred to the complaint as a whole and not to the separate causes of action stated, the demurrer must fail if either one of the two.causes of.action be properly alleged.
This court in its opinion (189 App. Div. 564) stated that the action was one in conversion. This was not strictly accurate. The action is upon an implied contract arising out of a claimed conversion, the plaintiff having waived the tort in her complaint. The distinction, however, is wholly irrelevant as to the question raised as to the sufficiency of the complaint and is only important as to future proceedings that may be taken in the case.
As to the second cause of action the plaintiff has realleged the matters alleged in the first paragraph of the first cause of action, to wit, the allegation setting forth the partnership of the defendants, and has alleged a sale by the defendants of certain stocks held by them as security for the plaintiff’s account. This allegation of a sale is an allegation of a sale without notifying the plaintiff of the amount of margin required and on less than twenty-four hours’ notice to plaintiff of their intention to sell such stock and without giving the plaintiff notice of- the place of sale. The defendants clearly had no right to sell this stock without a demand for margin, and it
The motion for reargument should, _ therefore, be denied, also the alternative motion for leave to appeal to the Court of Appeals is denied.
Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur.
Motion denied, with ten dollars costs, and stay vacated.