Opinion
January Term, 1903.
Order reversed, with ten dollars costs and disbursements, and motion to make the complaint more definite and certain granted in accordance with opinion, with ten dollars costs. Order to be settled by Chase, J.
Some doubt is expressed by counsel as to the purpose of this action. We will first consider its purpose. The facts stated in the complaint show that the stock was issued in the name of McMaster or his wife. Neither McMaster nor plaintiff as executors of the will of Jane Bush ever had a legal title to any of said stock. Whether the money to purchase all or only a part of said stock was taken by McMaster from the assets of said estate, the claim of the plaintiff by reason thereof is equitable only. If the money was used from the assets of said estate in paying the note or notes of McMaster, for which said stock was held as collateral, plaintiff's claim on the stock, if any, by reason thereof, is equitable only. The defendant's testators or one of them claimed to have advanced certain moneys on account of said stock. It may be assumed, we think, that the balance due on the McMaster note or notes in the trust company was paid, or that said note or notes were purchased at the time of the receipt of said certificates of stock then held as collateral to said note or notes. Defendant's interest in the stock, if any, by reason of holding said note or notes, will doubtless be insisted upon by them. Except for the alleged transfer of their interest in said stock by McMaster and wife to the plaintiff, it probably would not be suggested that this was an action for conversion. If on the trial of the action plaintiff should fail to establish the transfer of the stock by McMaster and wife to him, or if it should then appear that McMaster and wife had prior thereto sold all their right, title and interest in the stock to the defendants or others, plaintiff would doubtless insist upon his equitable claim or claims arising by reason of the facts set forth in the complaint. The action should be deemed an action in equity for the ascertainment and adjustment of the interest of all parties to the action and not an action for conversion. The precise meaning of some of the allegations of the complaint is not apparent. It is not apparent whether plaintiff claims that McMaster purchased the whole or only a part of said stock with money of said estate. The complaint should state specifically whether all of said stock was purchased with money of said estate or only a part thereof, and if only a part thereof, which part was so purchased. If all of said stock was purchased with the money of said estate the claim of plaintiff relates to all of said stock, and the statement in the complaint that said certificates of stock became the property in whole or in part of said estate is inconsistent, indefinite and uncertain. If plaintiff claims that the stock belongs wholly to him apart from the transfer thereof by McMaster and wife, then the allegations of the complaint relating to the misappropriation by McMaster of money of the estate and the payment thereof upon his note or notes are immaterial. It is not apparent whether plaintiff claims to have an equitable lien upon said stock by reason of the moneys misappropriated by McMaster from said estate and paid on said note or notes. If said stock was not wholly purchased with money of the estate the complaint should state not only which part thereof was so purchased with moneys of the estate, but it should state specifically the dates and amounts of the moneys misappropriated from said estate and paid upon said note or notes, for which an equitable lien is claimed on that part of the stock that had not theretofore been so purchased with money of the estate. It is not apparent whether plaintiff claims that Edmund O'Connor stated to the plaintiff in his lifetime that he had advanced certain moneys on account of said stock, or whether an offer was then made by the plaintiff to said Edmund O'Connor to repay to him the moneys so alleged to have been advanced on account thereof, and whether said offer was refused by said Edmund O'Connor. The complaint should state specifically what, if any, offer was made to said Edmund O'Connor to repay to him moneys alleged to have been advanced on account of said stock, and if an offer was so made to him whether the same was accepted or refused by said O'Connor. And said complaint should also state specifically the date when said McMaster and wife transferred to the plaintiff their right, title and interest in and to said stock. ( Rosenthall v. Rosenthall, 19 Civ. Proc. Rep. 56.) Order should be reversed, with ten dollars costs and disbursements, and order to make the complaint more definite and certain should be granted in accordance with this opinion, with ten dollars costs. All concurred.