179 A.D. 696 | N.Y. App. Div. | 1917
On the stipulated facts the plaintiff claims the right to recover the sum of $1,015.71, the amount of defendant’s indebtedness to him as shown by an account rendered on
On the 2d day of May, 1907, defendant opened an account with the stock-brokerage firm of Slayback & Co. for the purpose of buying and selling securities upon m’argin pursuant to the rules and customs of the New York Stock Exchange. Numerous orders to buy and sell securities were executed by the firm for defendant’s account, and the last transaction was the purchase of fifty shares of Union Pacific Railway Company stock on the 13th day of July, 1908, to cover a prior short sale. After that purchase the customer was neither long nor short of securities, but there was a balance owing by him to the brokerage firm of $758.64. During the time the account was active the brokerage firm rendered monthly statements to the customer in accordance with the general custom and rendered such a statement on the 1st day of August, 1908, after the last transaction. Thereafter the brokerage firm continued to render monthly statements which showed no items of account between the parties but merely the balance as shown by the preceding monthly account Upon which interest for the month had been computed and added, thus showing a new balance by the addition of one month’s interest on the former balance. Such was the statement rendered by the brokerage firm to the defendant on the 1st day of March, 1913, which the plaintiff claims constituted the account stated. On the 28th of March, 1914, the brokerage firm dissolved and the plaintiff, who was one of the members thereof, became the assignee of the account.
On the facts stipulated the account rendered on the 1st day of August, 1908, after the last transaction between the parties, which was received, examined and retained by defendant without exception, clearly constituted an account stated as to the entire balance and gave rise to a new cause of action
It follows that the defendant should have judgment for a dismissal of the complaint as claimed, but, in accordance with the stipulation, without costs.
Scott, Smith, Page and Davis, JJ., concurred:
Judgment directed for defendant dismissing the complaint, without costs. Order to be settled on notice.