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.
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
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.