
    Ida P. Clark, Respondent, v. Thomas A. Ennis and Charles F. k Stoppani, Appellants.
    
      Examination before trial to enable plaintiff to form her complaint, in an action arising out of money furnished to a broker tp buy stocks.
    
    The plaintiff in an action commenced by the service of a summons made a motion for an examination of the defendants based upon a petition in which she alleged that the action was brought to recover moneys paid to the defendants for the purpose of purchasing certain stocks and bonds for the plaintiff or for the delivery of said stocks and bonds, and, upon information and belief, that the defendants had given the plaintiff two conflicting statements as to the condition of her account, and that the plaintiff was unable to form her complaint wdthout the knowledge of certain facts, which facts the defendants had refused to give to her.
    It was further alleged that the ‘ ‘ plaintiff is unable to know the exact form of action to bring herein from the facts within her knowledge, and that the facts which plaintiff wishes to ascertain from this examination are material and necessary for the purpose of forming her complaint herein, as defendants gave plaintiff conflicting statements as to the time when the alleged stocks were sold, and as to what stocks were sold, and plaintiff does not know whether said stocks were over bought by said defendants, and does not know whether her action will be for the recovery of the money so advanced, or for delivery of the stocks ordered by her.”
    The.plaintiff also submitted an affidavit in which she stated that “her stocks were sold out without notice to her, and-that on that day she paid or caused to be paid one thousand dollars on account of margin, and stood ready and willing to put up further margins upon notice.”
    
      
      Held, that the examination of the defendants was not necessary to enable the plaintiff to prepare her complaint, as upon the facts stated by her she had a good cause of action to recover the stocks that the defendants had purchased for her or to recover damages for a conversion of such stocks.
    Patterson, J., dissented.
    Appeal by the defendants, Thomas A. Ennis and another, from an order of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the county of Rew York on the 17th day of July, 1901, denying the defendants’ motion to vacate an order theretofore granted in the action for the examination of the defendants before trial for the purpose of enabling the plaintiff to frame her complaint.
    
      Parker K. Decme, for the appellants.
    
      Ellis B. Southworth, for the respondent.
   Ingraham, J.:

This action was commenced by the service upon the defendants of a summons without a complaint. The plaintiff then presented to the Special Term her petition, wherein she alleges that the action is brought to recover moneys paid to the defendants by the plaintiff for the purpose of purchasing and under the express orders to pur-, chase certain stocks and bonds, or for the recovery of said stocks and bonds, or the return of the money so advanced, demand for which has been duly made and refused; that upon information and belief the defendants have given plaintiff two conflicting statements as to the condition of said account, and plaintiff believes that said defendants are maliciously and fraudulently withholding plaintiff’s stocks or money and information in reference thereto, and the plaintiff claims that she is entitled to recover damages of the defendants for the conversion of the stocks or the return of the money so advanced to the defendants as her brokers- or agents; that the plaintiff is unable to form her complaint without the knowledge of certain facts, which fact's the defendants have refused to give to the plaintiff, after demand having been made therefor; that the “ plaintiff is unable to know the exact form of action to bring herein from the facts within her knowledge, and that the facts which plaintiff wishes to ascertain from this examination. are material and necessary for the purpose of forming her complaint herein, as defendants gave plaintiff conflicting statements as to the time when the alleged stocks were sold, and as to what stocks were sold, and plaintiff does not know whether said stocks were ever bought by said defendants, and does not know whether her action will be for the recovery of the money so advanced, or for delivery of the stocks ordered by her.” Annexed to this petition is an affidavit of the plaintiff, which reaffirms the allegations of the petition, and upon this petition and affidavit an order was granted requiring the defendants to appear and submit to an examination at the Special Term for the purpose of enabling the plaintiff to prepare her complaint. Upon affidavits of one of the defendants and one of their employees the defendants moved to vacate this order; and in opposition to that motion an affidavit of the plaintiff was read, .in which she stated that “ her stocks were sold out without notice to her, and that on that day she paid or caused to be paid One • thousand dollars on account of margin, and stood ready and willing to put up further margins upon notice.”

Upon these papers we do not think that it appears that this examination was needed to enable the plaintiff to prepare her complaint. Upon the facts as stated by her it is quite apparent that she has a good cause of action to recover the stocks that the defendants had purchased for her, or to recover damages for a conversion of such stocks. She does not dispute but that she ordered the stocks purchased, and that the defendants reported such purchases to her, and the defendants allege that the stocks were purchased for her account. For the purpose of preparing her complaint it is entirely immaterial whether the defendants sold her stock or not, provided such sale was unauthorized. After the case was at issue the plaintiff might be entitled to an examination of the defendants before trial for the purpose of procuring evidence to be used upon the trial; but it is quite evident that such an examination is not at all necessary to enable her to prepare her complaint. The only allegation that conflicting statements have been made by the defendants is upon information and belief. That conflicting statements as to the condition of her account have been furnished would be entirely immaterial so far as the preparation of the complaint is concerned, because she nowhere states that such statements had any relation to the purchase of the stocks, her sole cause of action, so far as stated, being to recover either the stock purchased for her account by the defendants, or damages for a conversion of such stocks.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred ; Patterson, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  