24 A.D.2d 514 | N.Y. App. Div. | 1965
In an action by a limited partner of a securities brokerage firm, to recover moneys and securities and for damages and an accounting, the defendant New York Stock Exchange appeals from an order of the Supreme Court, Nassau County, entered August 28, 1964, which denied its motion to dismiss the complaint on the ground that it fails to state a cause of action as against the Exchange; or in the alternative, for summary judgment (CPLR 3211, suhd. [a], par, 7; subd. [e]). Order reversed, with $10 costs and disbursements; motion granted; and complaint, as against the defendant New York Stock Exchange, dismissed, with costs. Plaintiff was a limited partner pf the defendant Ira Haupt & Co. (hereafter called “Haupt”), which was a member of the defendant New York Stock Exchange. The Exchange suspended Haupt’s membership on November 20, 1963. This action is: (a) to recover moneys and securities claimed to be owing to plaintiff by Haupt under the Haupt partnership agreement and under a certain loan contract between plaintiff and Haupt; (b) for an accounting; and (c) for damages on a claim of conversion of securities. Plaintiff seeks to hold the' Exchange liable, in seven causes of action, on the theory, in addition to the claim for conversion, that on November 25, 1963 the Exchange succeeded to and took control of the business and property of Haupt; began to operate Haupt’s business through its agent and designee, the defendant James P. Mahony; and undertook to pay the claims of Haupt’s creditors, knowing that plaintiff was' also a creditor of Haupt. Plaintiff relies on certain provisions in the Haupt partnership agreement and in the loan contract, of which it is claimed the Exchange had knowledge. In the partnership agreement these provisions are that the agreement is binding on the “ legal representatives ” of the parties thereto; and in the loan