
    (89 Hun, 471.)
    MANNING v. MANNING.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    Accounting—Action for—Pleading.
    In an action for an accounting, a complaint alleging that plaintiff bad deposited with defendant money for purposes of investment and speculation on her account, that defendant had made large profits therefrom, which he had refused to account for, and that he had refused to deliver to plaintiff stock, bonds, and personal property in his hands belonging to her, will not sustain a recovery for profits on an account opened by defendant in plaintiff’s name, with the intention of making her a gift of the income and profits of such account.
    
      Appeal from judgment on report of referee.
    Action by Mary Manning against John B. Manning to recover ■ from defendant certain stocks, bonds, moneys, bank books, and vouchers. From a judgment granting part of the relief sought, both parties appeal. Reversed on defendant’s appeal.
    For former report see 33 3ST. Y. Supp. 1029.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    R. D. Murray, for plaintiff.
    J. A. Straley, for defendant.
   VAN BRUNT, P. J.

The complaint in this action alleges, in its first paragraph, that heretofore, at various times, the plaintiff had paid to, delivered to, and deposited with the defendant certain sums of money, for the purpose of investment and for speculation, in the purchase of stocks, bonds, and personal property, on her account. The complaint further alleges, in the second paragraph thereof, upon information and belief derived from the statements of the defendant, that he had made large profits therefrom on her account, and alleged that the defendant had neglected and refused, on demand, to account with the plaintiff for said profits, or to deliver to her the stocks, bonds, money, and personal property in his hands belonging to her, and that, among other things, defendant had stated to her that there was on deposit in various savings banks of the city of New York a sum in excess of $3,500, belonging to the plaintiff, and deposited in plaintiff’s name, and that the defendant had stated that he had in his possession, of her property, among other stocks and securities, 100 shares of the preferred stock of the Chicago & Northwestern Railroad Company, 100 shares of the stock of a railroad company designated as “Omaha Common,” 5 shares of the stock of the New York Central & Hudson River Railroad Company, and other stocks named in the complaint. The plaintiff demanded judgment that the defendant pay over to her such money, belonging to her, as he had deposited in any savings bank; that he deliver to her the bank books and vouchers therefor, and all certificates of stock belonging to her, or representing stocks purchased for her, and all bonds belonging to her, or purchased for her account; and that he render an account of all his dealings and operations with the money and property of the plaintiff, and pay over to her the balance that may be found to belong to her, with costs. The defendant answered, denying each and every allegation in the complaint.

Upon the termination of the plaintiff’s case a motion was made by the defendant’s counsel to dismiss the complaint on the ground that the plaintiff had not shown facts sufficient to entitle her to an accounting, and upon the ground that the plaintiff had not shown facts sufficient to establish that any account was ever opened by her with Mr. Manning, by advancing money to Mr. Manning for the purposes of that account, and also upon the ground that the plaintiff had failed to make out a cause of action, in any aspect of the case, either at law or in equity. This motion was denied, and the defendant excepted. The defendant’s counsel thereupon asked the referee to state the grounds of his refusal, and the referee stated the ground to be because there was some evidence that the plaintiff delivered to and deposited with the defendant a certain sum of money for investment and speculation. The case then proceeded, and was finally submitted on both sides to the referee. The referee filed his report, stating, among the grounds of his decision, that-while the plaintiff had failed to establish paragraph 1 of her complaint, yet she had proved facts which were substantially, though imperfectly, alleged in paragraph 2 thereof, and which entitled her to the relief prayed for, and that it was proved that the defendant, who was plaintiff’s husband, and who was engaged in business as a stockbroker, opened an account in her name for the purpose of speculating in stocks, and that all stock purchased—even that with which the account was opened—-was charged against it, and thus only income, interest, and profits became the property of the account, and that this account had been continued to the present time, and there had resulted, as income and profits therefrom, certain stocks, bonds, and money, which were in defendant’s possession, or subject to his control, but which had either been delivered to and accepted by the plaintiff, or were the proceeds of the sale of stocks and bonds which had been so delivered, and that at the time of opening said account the defendant intended to make a gift of the income and profits thereof to the plaintiff.

It is apparent, upon reading the complaint, that the cause of action alleged, and tne only cause of action alleged, is that the plaintiff had deposited with the defendant certain sums of money for the purposes of investment and speculation on her account, and that the defendant had made large profits therefrom (namely, from the sums of money deposited by the plaintiff with him for the purposes of investment and speculation), which he had neglected and refused, on demand, to account for to the plaintiff, and that he had further refused to deliver to her stocks, bonds, and personal property in his hands, belonging to her; the allegation evidently referring to stocks, bonds, money, and personal property, the results of the money deposited by her with him for investment and speculation. Then follows an allegation that there are certain sums of money on deposit, and certain stocks held by him, which he refuses to deliver. Upon this state of the complaint, based entirely upon the allegation of deposits of money by the plaintiff with the defendant for investment and speculation, a recovery is allowed to be had for a claimed gift inter vivas of the profits of a broker’s account. It seems to us that no such cause of action is alleged in the complaint. When the motion was made to dismiss the complaint upon the ground that no cause of action was made out, either in law or in equity, it was not intimated that the complaint could be upheld upon any such ground; and the referee expressly placed his refusal to dismiss the complaint upon the ground that there was some evidence that the plaintiff had deposited with the defendant a certain sum of money for the purposes of investment and speculation. By his subsequent report the referee has found that there was no foundation for any such claim, and gives judgment upon a ground which is not even hinted at in the complaint. It is not necessary, in this condition of the pleadings, for us to discuss the question as to whether any cause of action was made out. There was certainly no ground established for this action in equity for an accounting. The judgment should be reversed, upon the defendant’s appeal, and a new trial ordered before another referee,-to be appointed by this court, with costs of appeal to the defendant, to abide the event. All concur.  