
    Carl Rappolt, Respondent, v. Charles Baring, also Known as " Boscowitz," Defendant, Impleaded with Stephen H. P. Pell and Robert M. Thompson, Defendants, and Howland Haggerty Pell and Charles A. Kittle, Appellants, Copartners, Doing Business under the Firm Name and Style of S. H. P. Pell & Company.
    First Department,
    June 24, 1910.
    Discovery—examination to frame complaint — insufficient affidavits.
    Where on a motion to examine certain parties to enable plaintiff to frame his . complaint it appears by the moving affidavits that plaintiff delivered to one B. a sum of money to be used in stock speculation; that B. represented that he deposited the money with a firm of brokers and lost it; that said information was false and that the money has not been lost, and it does not appear that ■ the brokers knew that B. represented plaintiff or that they now have any money belonging to him, plaintiff should not be permitted to examine the members of the brokerage firm to ascertain whether or not plaintiff’s money was all deposited with them' and the. present state of the account..
    A statement in the affidavit that the members of the firm had full knowledge and became brokers to carry on such transactions as might be directed by B. is a legal conclusion.
    Appeal by the defendants, Howland Haggerty Pell and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clérk of the county of Mew York on the 28th day of April, 1910, denying the said defendants’ motion to vacate an order for their examination herein to enable plaintiff.to frame his complaint.
    
      J. Edward Murphy, for the appellants.
    
      John Saxton Sumner, for the respondent.
   Laughlin, J.:

The plaintiff shows that he has brought this action to recover the sum of $3,369.40 for breach of contract on the part of the defendants as his stockbrokers and agents" “ or for conversion or fraud and misrepresentation as may appear.” The appellants are members of the: stock brokerage firm of S. H. P. Pell & Co., and it is to be inferred, although it is not expressly shown, that the other defendants, with the exception of the defendant Baring, are also members of that firm. The plain tiff also shows that he deli vered to the defendant Baring the sum of $3,500 on an agreement that Baring was to become manager of a pool, to which lie also was to contribute, to deal in stocks for himself, the plaintiff and others, and was . to protect the plaintiff in any transactions entered into on account of the pool without calling upon him for further funds, and was to return said sum of $3,500 and three-fourths of the profits thereon ; that Baring subsequently reported to plaintiff that he had undertaken certain stock transactions with said firm as brokers and called upon the plaintiff for additional funds, and thereafter reported that the funds deposited by the plaintiff excepting the sum of $130.40, which he returned, had been lost.

The plaintiff claims that this information was erroneous; that the funds deposited by Baring with said firm have not been lost, and he states in li.is affidavit that he desires to examine the appellants “ to ascertain whether or not all of plaintiff’s funds were deposited with them, what trades were made and with whom, and the present state of the account.” The plaintiff further shows that he has not this information and he cannot frame his complaint without it, because he “ does not know whether to frame his complaint on the theory of breach of contract, conversion or fraud and misrepresentation.” It does not appear that the plaintiff has any cause of action against the appellants. It is not shown that any of the money delivered by the plaintiff to Baring was delivered to the appellants, or to their firm, nor is it shown that appellants knew that Baring represents plaintiff or that they now have any money belonging to him. The affidavit of the plaintiff, after setting forth the agreement between him and Baring, contains a statement as follows : “ All of which the defendants * * * Howland Haggerty Pell, Charles A. Kittle- * * * had full knowledge and there upon became brokers to carry on such transactions as might be directed by said Baring for the usual commissions allowed by the Hew York Stock Exchange” to be charged by its members. This allegation is in the nature of a legal conclusion. Ho fact is stated with respect to the communication of the agreement to the appellants or to their firm. It does appear that Baring opened an account with the firm, designated “ Pool Account,” but, as already observed, it is not shown that any of the plaintiff’s money went into that account. It is stated in the points of tile-respondent that Baring took an appeal from the order but has not perfected it, and in the poitits of the appellants that he abandoned it: Doubtless the examination of Baring will develop the material facts, and thereafter it may be that the plaintiff will be entitled to examine the appellants.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and motion granted,'with ten dollars costs, but without prejudice to a renewal of the application for the examination of the appellants after the. examination of Baring.

Ingraham, P.- J., McLaughlin,, Scott and Dowling,. JJ., concurred. -

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to renewal <?■ * of application for examination of appellants after examination of Baring.  