Opinion
April 5, 1907.
De Lancey Nicoll [ Courtland V. Anable with him on the brief], for the appellant.
Joseph H. Choate [ James McKeen and Joseph H. Choate, Jr., with him on the brief], for the respondent.
The complaint contains two counts. The first alleges a fraudulent and corrupt agreement and conspiracy between the appellant, who was president of the plaintiff, and the other defendants, who composed the firm of Charles H. Raymond Co., the defendant Thebaud being son-in-law to said McCurdy, to enrich the firm and particularly Thebaud at the expense of the plaintiff, by which the firm was to receive and did receive, as general agent of the plaintiff, compensation at special and exorbitant rates, exceeding the fair and reasonable compensation for the services rendered or to be rendered by the sum of $750,000, and other moneys aggregating $500,000, for which plaintiff was to receive and did receive no consideration, to plaintiff's damage in the sum of $1,250,000. The observations in Mutual Life Ins. Co. v. McCurdy and McCurdy ( 118 App. Div. 827), argued and decided herewith, answer the objections to the order presented on this appeal, so far as the first count of the complaint is concerned, and render further discussion thereof unnecessary.
In the second count the plaintiff alleges its incorporation and that "between the 1st day of January, 1893, and the 17th day of November, 1905, the defendants, acting jointly, wrongfully and without authority, took certain money, the property of the plaintiff, consisting of checks, bank bills, United States notes, Treasury notes, gold and silver coin, of the amount and value of five hundred thousand dollars ($500,000) and wrongfully converted the same to their own use, to the damage of the plaintiff" in the sum of $500,000. I am of opinion that this count should be made more definite and certain. It is possible that the conversion of this property constituted only a single transaction, but that is highly improbable. It is not alleged to have been converted all on the same day, but during a period covering nearly thirteen years. Various kinds of property are involved and the amount is very large. The reasonable inference is that this wrong was not a single act of conversion, but many acts at different times, quite remote and disconnected from one another. The count should, therefore, be made more definite and certain with respect to the time and with respect to whether it is claimed that the property was converted by a single act or transaction; and if there was more than one conversion, the causes of action should be separately stated and numbered.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted as to the second cause of action as indicated in this opinion.
PATTERSON, P.J., INGRAHAM, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion. Settle order on notice.