137 A.D. 912 | N.Y. App. Div. | 1910
Judgment affirmed on the opinion of the referee. Present — Ingraham, P. J., McLaughlin, Laughlin, Scott and Miller, JJ.
' The following is the opinion of the referee:
The facts of this case are undisputed. The defendants were copartners conducting a stock brokerage business in the city of New York. The plaintiff was a customer of the firm,, which had in its possession for his account on July 1, 1906, the following named securities, each of the par value of §10U; 500 shares of the capital stock of the New York Central Railroad Company; 350 shares of the common capital stock of the American Sugar Refining Company; 100 shares of the common capital stock of the United States Reduction and Refining Company; 135 shares of the capital stock of the Amalgamated Copper Company. The plaintiff had two accounts, one styled “ general account” and the other “special account.” In the latter were the 500 shares of the New York Central and 300 of the 350 shares of the American Sugar Refining Company. The remainder of .the securities were carried in the “general account.” The defendants had the usual broker’s lien upon these stocks for whatever advances or loans they had made to the plaintiff or for his account. Statements of these accounts were mailed to the plaintiff-on the evening of June 30,1906, at his business office in New York city, which showed a total, debit on the two accounts of §137,333.08. The value of the securities, according to the highest .quotations of that day, was §137,593.75. The plaintiff had no personal acquaintance with the members of the firm excepting the defendant Hernsheim, his dealings having been through one Schlesinger, who was in the employ of the defendants and who appears to have been a personal friend of the plaintiff. On the evening of June 39, 1906, the plaintiff left New York on his vacation, expecting to be gone about six weeks or two months, camping near Belgrade Lakes, Maine. Before his departure on that day he notified Schlesin,ger “ that he (plaintiff) was going away on his vacation for six weeks or two months, and talked with him (Schlesinger) about his (plaintiff’s), account; the plaintiff was told by Schlesinger that the account was all right and that if anything happened he would take care of the account. ” The plaintiff remained absent from the city until August thirty-first, excepting that having been called to Washington on July twenty-eighth by reason of the death of a relative he stopped in New
*914 “Rosenbaum & Stocbbridge,
“ Attorneys in Patent Cases,
“ 140 Nassau Street,
“New York, July SI, 1906.
“Messrs. Stiebel, Hernsheim & Co.,
“ 67 Exchange Place,
' “N. Y. City.
“ Gentlemen.— On my return to town to-day I find that my account has not been restored to its original status, as requested. I, therefore, beg to'say that I shall be compelled to proceed against you legally unless notice of its restoration is received at my office before noon to morrow the 1st prox. After the account has been restored, I direct that at twelve O’clock to-morrow the 1st prox. you*915 close out the ‘ special ’ account bjr selling 500 shares oí H. Y. Central and 200 shares American Sugar Refining at the market.
“I beg to say further that Mr. Schlesinger had absolutely no authority to either buy or sell stock for my account, and that the closing out of my line of stock was wholly unauthorized, and without either prior notice to me or call for additional margin.
“ I am leaving town again to-night, but Mr. Stockbridge, my attorney, will have full authority to act in the matter.
“Yours very truly,
“(Sgd). WM. A. ROSENBAUM.”