192 A.D. 578 | N.Y. App. Div. | 1920
The plaintiffs are members of a firm carrying on a stock brokerage business in the city of New York, under the firm name of Edey, Leslie & Sloan. The action was brought to have it adjudged that the sum of $23,743.15 with interest is due and owing from the defendant Segar; that the plaintiffs have a lien for that amount on the securities held by them; that the securities be sold for the satisfaction of the lien and that the defendant Segar be adjudged to pay any deficiency. Harriet Mullins was not served with summons and did not appear in the action. Samuel Segar opened a speculation account with the plaintiffs in his own name on or about March 14, 1916, and thereafter was at plaintiffs’ offices every business day conducting his operations and dealt in many thousands of shares of stock each month. During the period from March, 1916, to October, 1917, his purchases and sales amounted to approximately 205,400 shares. He was at that time the plaintiffs’ largest customer. On June 8, 1916, an account was opened with the plaintiffs in the name of Harriet Mullins, who was Segar’s stenographer. The first of these accounts we will hereafter denominate the Segar account and the second the Mullins account. On December 31, 1917, in the Segar account there was a debit balance of $7,889.32 against which the plaintiffs held 200 shares of the common stock of the Baldwin Locomotive Works. In the Mullins account there was a debit balance of $15,853.83, against which the plaintiffs held 200 shares of American Writing Paper Company preferred stock and four Anglo-French bonds. On January 11, 1918, Segar tendered to the plaintiffs the sum of $7,889.32, together with the interest thereon, and demanded the delivery of the 200 shares of Baldwin Locomotive Works stock. The plaintiffs refused the tender and demand solely on the ground that Segar was also liable for the Mullins account. This action was thereafter brought. The sole question presented for decision was whether Segar owned or was responsible for the Mullins account. This presented questions of fact and although the learned trial justice has found for the plaintiffs, he has made many findings of fact that would lead to a contrary conclusion.
The Mullins account was opened at the request of Segar.
“ Edey, Leslie & Sloan,
“ Members N. Y. Stock Exchange,
“ 74 Broadway,
“New York, June 8,1916.
“ Miss Harriet Mullins,
“ 2170 Washington Ave.,
“ Bronx:
“Dear Madam.— We beg to advise you that we have this day received from you $1,000 which amount we have placed to the credit of your account. We have bought for your account 100 shares of Reading at 106% and 100 shares of Marine P’fd at 96% as per enclosed notice.
“ Yours very truly,
“ EDEY, LESLIE & SLOAN.”
Inclosed therein was the usual “ bought notice ” from broker to customer, addressed to Miss Harriet Mullins stating that they had that day “ bought for your account and risk,” the above-mentioned stock, giving price, time of purchase, commission, gross amount and the names of the brokers from whom bought, which also contained the agreement between broker and customer with relation to the right of the broker to pledge the said stocks. The plaintiffs sent to Harriet Mullins similar bought notices of each purchase stated in the Mullins account and sold notices for each sale stated in that account. Monthly
Plaintiffs did not produce at the trial any book, paper or record made or kept while these accounts were running, showing any account combined of these two accounts, or of the margin on any such combined account, and kept no combined account in their books. There were three deposits in cash made in the Muffins account as follows: June 8, 1916, $1,000; September 18, 1916, $2,000; December 15, 1916, $1,000. The court found specifically that Harriet Mullins furnished the cash deposited to her account in each instance, and thus stated the source from which it was obtained; Harriet Mullins received from her sister Daisy Muffins $800 of the $1,000 deposited with plaintiffs on June 8, 1916, and $500 of the $1,000 deposited on December 15, 1916; Daisy Muffins withdrew $800 from savings bank accounts on June 8, 1916, and $500 similarly on December 15, 1916, and handed over these respective sums to Harriet Muffins. All the sums withdrawn from the Mullins account were paid to Harriet Muffins and divided with her sister Daisy. The interest on the Anglo-
“ Dear Mr. Segar.— Please send us Five thousand ($5,000) to margin your account.
“ Respectfully,
“ EDEY, LESLIE & SLOAN.”
It is to be noted that the demand is not to margin “ your accounts ” but the singular form is used. Because, of the fact that there is liability to dispute and misunderstanding when one person claims that a second person has agreed to be liable for. the debt or default of a third person, the law provides that such a promise may not rest upon mere oral evidence, but some note or memorandum thereof must be in writing and subscribed by the party to be charged. (Pers. Prop. Law, § 31, subd. 2.) In the case under consideration the documentary evidence tends to corroborate the defendant’s version of the facts of this case and to disprove the plaintiffs’ contention. It is interesting to note, in this connection, that the learned trial justice found that the plaintiffs’ letter of January 12, 1918, was the first writing in which plaintiffs claimed defendant Segar was responsible for the Mullins account, and that this was after defendant Segar had written to plaintiffs directing them to transfer his account to other brokers upon payment of the indebtedness in the Segar account.
Laughlin, Dowling and Merrell, JJ., concur; Smith, J., dissents.
Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice.