Opinion
March 24, 1933.
Appeal from Supreme Court of Bronx County.
William Harvey Reeves of counsel [ Carl A. Mead with him on the brief; Shearman Sterling, attorneys], for the appellant.
Joseph L. Zoetzl, for the respondent.
Present — FINCH, P.J., MARTIN, O'MALLEY, SHERMAN and TOWNLEY, JJ.
The complaint as framed is to be regarded as one predicated on conversion rather than on negligence and as setting forth a single cause of action. Assuming that in such an action special damages may in some instances be properly pleaded ( Allen v. Fox, 51 N.Y. 562; Johnson v. Marks, 66 Misc. 153), we are of opinion that the allegations of paragraph eighth fail to sufficiently connect the defendant with the resultant facts set forth therein.
It follows that the order should be reversed, with twenty dollars costs and disbursements, and the motion granted to the extent of striking out paragraph eighth, with ten dollars costs, but with leave to plaintiff to serve an amended complaint within twenty days after service of the order to be entered hereon upon payment of said costs.
Order reversed, with twenty dollars costs and disbursements, and motion to strike out paragraph eighth of the complaint granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.