Noble v. Haff

155 N.Y.S. 560

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1915
• Status: Published

Opinion

BIJUR, J.

The complaint alleges in substance that plaintiff delivered a certain certificate for shares of stock to defendants’ testator, that she demanded its return without avail, and that since testator’s death and defendants’ appointment she has made a similar unsuccessful demand upon the defendants.. It also alleges that either the testator or the defendants have disposed of the certificate.

[1] As I read it, this complaint sets out but one cause of action, in conversion; and I find nothing inconsistent in the allegations, since both acts of conversion may have occurred. The right to sue the defendants individually and in their personal capacity, where it is uncertain whether the cause of action arose through acts of the testator or of the defendants individually, seems to be clearly accorded by section 1815 of the Code of Civil Procedure.

[2] Except, therefore, that plaintiff should by the complaint apprise defendants of the date of the demand upon the testator and themselves respectively, that date being the date of an event essential to the cause of action in that aspect, I find no' merit in the defendant's motion.

The order will be modified accordingly, and, as modified, affirmed, without costs, but with disbursements to the appellant. All concur.