Atkin v. Hill, Darlington & Grimm
| Decision Date | 23 January 1963 |
| Citation | 238 N.Y.S.2d 516,12 N.Y.2d 940,188 N.E.2d 790 |
| Parties | , 188 N.E.2d 790 Samuel ATKIN et al., Appellants-Respondents, v. HILL, DARLINGTON & GRIMM et al., Respondents-Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 15 A.D.2d 362, 224 N.Y.S.2d 553.
Customers of stock brokerage firm brought action against successors in interest of the firm to rescind sale of insurance company stock to customers and recover money paid for the stock, on ground that the insurance company was a foreign insurance company not authorized to do business in the state and the firm had not been licensed by the Superintendent of Insurance to sell the stock to the public.
The Supreme Court, Special Term, New York County, Arthur G. Klein, J., entered orders denying motions of both the customers and the successors in interest of the firm for summary judgment, and they appealed.
The Appellate Division, Botein, P. J., affirmed the orders and held that under the Insurance Law, Consol.Laws, c. 28, § 51, subd. 6, dealers may trade in securities of insurance companies not licensed to do business in New York after the securities have been on the market in the state for one year, and that question whether transaction occurred more than one year after first offering of stock to the public had been made required full development of facts at trial.
The Appellate Division certified questions: (1) 'Were the orders of Special Term correct in denying plaintiffs' motion and renewed motion for summary judgment?' and (2) 'Was the order of Special Term correct in denying defendants' renewed motion for summary judgment?'
Both the customers and the successors in interest of the firm appealed to the Court of Appeals.
Mermelstein, Burns, Lesser & Goldman, New York City (Arnold I. Burns, Stanley T. Lesser and Jay D. Fischer, New York City, of counsel), for plaintiffs-appellants-respondents.
Spear & Hill, New York City (George Zeidenstein, Charles Krupin and Joel M. Handel, New York City, of counsel), for defendants-respondents-appellants.
Orders affirmed, without costs. The questions certified on the appeal and the cross-appeal answered in the affirmative.
All concur except DYE, VAN VOORHIS and vote to modify and to dismiss the complaint upon the ground that under the applicable statute criminal liability is the exclusive redress for its violation (Sajor v. Ampol, Inc., 275 N.Y. 125, 9 N.E.2d 803; ...
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...(per curiam); cf. Atkin v. Hill, Darlington & Grimm, 15 A.D.2d 362, 224 N.Y.S.2d 553 (1st Dep't 1962), aff'd mem., 12 N.Y.2d 940, 238 N.Y.S.2d 516, 188 N.E.2d 790 (1963). See 3 L. Loss, Securities Regulation 1661-69 (2d ed. 1961). Accord, Superintendent of Insurance v. Freedman, 443 F.Supp.......
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