210 A.D. 450 | N.Y. App. Div. | 1924
The claimed dereliction on the part of the defendants upon which the plaintiff claims to be entitled to the equitable relief granted by the interlocutory judgment appealed from is that the defendants, during their transactions as the agents of the plaintiff, charged and received from the plaintiff interest in excess of six per cent per annum on certain balances claimed to be due them from the plaintiff, and that the transactions of the defendants with the plaintiff were usurious. Upon the trial the plaintiff offered no evidence concerning the transactions carried on by the defendants in his behalf beyond proving that in some instances the defendants had charged and received interest in excess of the legal rate. Indeed, it was virtually conceded by the defendants upon the trial that interest had on some occasions been charged the plaintiff at a rate greater than six per cent, the defendants, however, not admitting that such fact was .in any way relevant to the litigation, or that by charging such excess of interest over the legal rate the defendants were guilty of wrongful or illegal action. The evidence dis
The final statement made by the defendants to the plaintiff in writing at the time of closing out their account with the plaintiff, on January 12, 1921, brought forward the balance carried from the preceding statements and balanced the account between the parties.
At the close of the evidence the court rendered its decision finding that the plaintiff was entitled to an interlocutory judgment against the defendants for an accounting by them of their transactions as stockbrokers and agents of the plaintiff during the period aforesaid. In connection with such decision and at the request of the defendants the learned court at Special Term found as follows:
“1. That at all times hereinafter mentioned, the defendants*453 Nathan J. Miller, Louis S. Oppenheimer and Philip J. Levy, were co-partners, doing business as stockbrokers under the firm name and style of Miller & Company, in the Borough of Manhattan, City of New York and elsewhere.
“ 2. That at all times hereinafter mentioned, said defendants acted and were acting as the plaintiff’s stockbrokers and agents in and about the purchases and sales of various stocks and securities upon commissions; that the plaintiff, on or about and between the 15th day of September, 1916, and the 15th day of January, 1921, paid over to said defendants various sums of money and delivered to said defendants various stocks and securities in connection with said purchases and sales.
“ 3. That immediately after the purchase or sale of any stock or security defendants sent to plaintiff a statement setting forth the name of such stock or security, the purchase or selling price and the name of the broker with whom the transaction was had.
“ 4. That monthly during the continuance of plaintiff’s trading with defendants, defendants rendered statements of account showing the financial transactions had during the preceding month, together with the interest charged by defendants to plaintiff during such month, the balance owing by plaintiff to defendants at the end of the month and the securities or stocks carried by defendants for plaintiff at the end of such month.
“5. That plaintiff examined said statements of account.
“ 6. That plaintiff retained said statements of account without exception,
“ 7. That on or about the 12th day of January, 1921, plaintiff’s account with defendants was closed by the payment to plaintiff by defendants of $855.62. .
“8. That at the time plaintiff received said $855.62 from defendants he also received a statement of account closing his account and showing a balance of $855.62 to be due from defendants to plaintiff.
“ 9. That plaintiff examined said statement of account and retained the same without exception.
“ 10. That in some instances defendants charged interest in excess of 6% per annum and that plaintiff knew this at the time such charges were made and made no exception thereto. * * *
“ 12. That there was no agreement between plaintiff and defendants for the charging of any usurious or unlawful rates of interest. * * *
“ 14. That there was no evidence of any fraud or error in the accounts rendered by defendants to plaintiff.”
Notwithstanding such findings of fact made by the trial court,
So far as excess of interest is concerned, even though such charge was illegal at the time made, under section 372 of the General' Business Law action to recover the same must be brought within one year after payment of such usurious interest. The right of the plaintiff to recover of the defendants any excess of interest over that allowed by law terminated long before the commencement of the present action. (Palen v. Johnson, 50 N. Y. 49.) This limitation applies not alone to actions at law, but to equitable actions as well. (Gilleran v. Colby, 164 App. Div. 608.)
We are, therefore, of the opinion that plaintiff failed to establish a cause of action against the defendants requiring the defendants to account as agents for the plaintiff, and that the defendants were fully protected by the statement of account rendered to plaintiff on January 12, 1921, and by his acceptance and retention of such account and of the moneys then paid him by the defendants as the balance due in accordance with such statement.
The interlocutory judgment appealed from should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.
Clarke, P. J., Dowling, Smith and McAvoy, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice.