Lee v. Brown

139 A.D. 669, 124 N.Y.S. 204, 1910 N.Y. App. Div. LEXIS 2267

Opinion

Miller, J.:

In substance it is alleged that the plaintiff was induced by certain false and fraudulent representations to deposit $100,000 and securities to the value of $75,000 with the firm of H. C. Brown & Co., consisting of the defendants, Henry Carroll Brown, Percy H. Goodwin, Julian M. Gerard and George Brown, Jr., to purchase 455 shares of the capital stock of the Carnegie Trust Company, and to incur expenses in the sum of $12,500. It is also alleged that, by subsequent misrepresentations, he was induced to deposit additional securities with said firm of H. C. Brown & Co., to sell said stock and to invest the proceeds in certain notes, and that by reason thereof he was damaged in the sum of $250,000. It is alleged that said false and fraudulent representations were made pursuant to a plan conceived by the defendant Brown, .acting on behalf of said firm of H. O. Brown & Co., and the defendant Hamilton. The defendants moved that the plaintiff be required to separately state and number the facts constitutingxthe different causes of action, to wit, the facts constituting his cause of action with respect to the $100,000 deposited with H. O. Brown & Co..; the facts constituting his alleged cause-of action by reason of thez purchase of 455 shares of stock of the Carnegie Trust Company, and the deposit of securities with said firm of H. O. Brown & Co.; and the facts constituting his alleged cause of action for the recovery of $12,500 expended' by him, and the order appealed from so directs.

We are not now concerned with the sufficiency' of the complaint. The gist of the action attempted to be pleaded is fraud. The charge of conspiracy is only important to connect all of the defendants with the transaction and to charge each with the acts and declarations of the others. (Brackett v. Griswold, 112 N. Y. 454; Green v. Davies, 182 id. 499.) The cause of action for the fraud in inducing the plaintiff to purchase said stock, to deposit money and securities with said firm and to incur expenses' is but a single cause of action. It does not follow that the plaintiff can recover in this action the value of the securities and the sum of money deposited with said firm, or the amount invested by him in said stock. He says that he was damaged by the-fraud in the sum of $250,000. We cannot anticipate on this motion what his proof on that subject may be, and it is, therefore, impossible to determine what items of damage may be taken into account.

It may be that a separate cause of action was attempted to be set up with respect to the fraud, .inducing the deposit of the additional securities and the-sale of the stock and the investment of the proceeds in notes. But the notice of motion did not ask that the facts, constituting that cause of action be separately stated, and the order appealed from did not require it.

The order so far as appealed from should be reversed, with ten dollars costs and disbursements, and the motion to separately state and number the different causes of action denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs,