White v. Slayback

189 A.D. 564 | N.Y. App. Div. | 1919

Smith, J.:

The pleadings consist of the complaint and of the demurrers of Slayback, Coyne and of Feitner, the same attorneys appearing for Slayback and Coyne. Two orders were entered only. The plaintiff was doing business with the defendants as copartners in the stock brokerage business in the city of New York. She brings this action for conversion, in the sale of certain collateral which she held with the defendants for the purpose of protecting her "marginal account. The Special Term has held that the complaint did not state a cause of action. We are of opinion that taking the allegations of the complaint as true, which we must do, upon the defendants’ demurrer, the plaintiff’s complaint states a cause of action in both counts thereof.

In the first cause of action the plaintiff alleges that the defendants agreed that before selling any stocks belonging to the plaintiff for failure of margin: “ They would make due demand on the plaintiff for margin and would give plaintiff due notice of the time and place of sale,” and that the plaintiff’s stocks were sold without notifying the plaintiff of the amount of margin required and without giving the plaintiff due notice of the place of sale. If this agreement were in fact made and these stocks were sold without compliance on the part of the defendants with the conditions under which they were authorized to sell, the plaintiff has a right of action for their conversion, and we think the matters referred' to in the first count of the complaint sufficiently allege such a cause of action.

The second count realleges the matters alleged in the first count, and further alleges an agreement upon the part of the defendants upon consideration to carry her account “ for a reasonable time,” and “ see her through.” The allegation to “ see her through ” is clearly too indefinite to impose any obligation on the part of the defendants. In view of the nature of the transactions, where the amount of necessary margin depends upon a fluctuating market, always uncertain and always capricious, in my judgment, a promise to carry her account for a reasonable time is also too uncertain from which to find a binding obligation. This complaint also alleges, however, that these stocks were sold without notifying plaintiff of the amount of margin required and without giving the plaintiff notice of the place of sale, and, upon these allegations, we find a cause of action stated which is not obnoxious to a demurrer for insufficiency.

The orders should, therefore, be reversed, with ten. dollars costs and disbursements, and the plaintiff’s motions granted, with ten dollars costs, with leave to defendants to withdraw demurrers and to answer on payment of said costs. ¡ V>

Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, and motions granted, with ten dollars costs, with leave to defendants to withdraw demurrers and to answer on payment of said costs. in the office of the clerk of the county of New York on the 11th day of July, 1918, upon the verdict of a jury for $5,750, and also from an order entered in said clerk’s office on the 20th day of July, 1918, denying defendant’s motion for a new trial made upon the minutes.