Plаintiff is a New York Stock Exchange brokerage firm. Defendant is its former customer, being sued in this action for a debit balance resulting from his trading, on mаrgin, with the plaintiff. Plaintiff also seeks to recover the value Of 100 shares of stock registered in defendant’s name, which plaintiff sold to liquidate dеfendant’s account after the defendant refused to execute the required assignment or power of attorney to effectuate the transfer thereof to the purchaser. The amount and accuracy of defendant’s balance was conceded by him in his еxamination before trial and no question is raised by him with respect to the sale or the value of the aforesaid 100 shares of stock.
In addition to the pleadings and the moving and opposing affidavits of the parties to this action, the plaintiff has submitted its bill of particulars, attached to which is a complete transcript of defendant’s trading account with the plaintiff, and the transcript of defendant’s examination before trial, all of which were duly considered in the determination of the instant motion.
In challenging this motion for summary judgment, defendant has failed to convince the court that genuine issues of fact having merit have been raised. A shadowy semblance of an issue is not enough to defeat the motion. Rule 113 of the Rules of Civil Practice would serve no useful purpose if frivolous and transparеntly insufficient proofs such as have been brought forward here were held to create a triable issue. (Richard v. Credit Suisse,
A reading of defendant’s affidavit fails to reveal any evidentiary or other facts establishing that plaintiff “ deliberately and wilfully ” induced the defendant to engage in trades with the plaintiff. See Regulations Bd. of Governors of Fed. Reserve System, § 32, rеgulation “ T ”.) On the contrary, the defendant’s examination before trial patently establishes the converse, for therein defendant has аdmitted that in his trading with the plaintiff all decisions for purchases and sales were effected by him voluntarily either on his own investigation or on the rеliance on others than the plaintiff. Moreover, defendant’s affidavit, aside from the bald conclusion that he “ lost ” the sum of $2,-
Aside from the foregoing deficiencies and insufficiencies noted, it maybe well to statе that not every violation of even a statutory command or prohibition gives rise to' civil liability to one harmed by the violation or cаrries with it as a penalty an inability to enforce civil rights arising from acts which would have been lawful except for the statute; and a fortiоri mere violation of a rule of an exchange does not give rise to such civil liability or entail inability to enforce civil rights. (Marrow Mfg. Corp. v. Eitinger,
I am impressеd by the logic, reason and arguments of Mr. Justice Walter in Nichols & Co. v. Columbus Credit Corp. (
“ Similarly, even if plaintiff violated a rule of the exchange by extending credit to defendant, that violation does not give the defendant a cause of action.”
Appel v. Levine (
The Appel case involved a motion to dismiss a complaint for insufficiency in an action brought for damages under a conspiracy and scheme to cheat, injure and defraud the plaintiff and for the misappropriation and conversion of his moneys with the utilization of regulation “ T ” as the medium therefor.
The Remar case involved loans made by a bank allegedly in violation of regulations “ T ” and “ U ”.
Accordingly, plaintiff’s motion for summary judgment is granted, defendant’s answer is stricken, and judgment may be entered by the plaintiff as demanded in the summons and oral pleading.