Bouton v. Van Buren

• Citation: 229 N.Y. 17,127 N.E. 477
• Parties: BOUTON v. VAN BUREN et al.
• Decision Date: 27 April 1920
• Court: New York Court of Appeals

229 N.Y. 17

127 N.E. 477

BOUTON

v.VAN BUREN et al.

Court of Appeals of New York.

April 27, 1920.

Action by Maude E. Bouton, on behalf of herself and all principals, etc., against Charles H. Van Buren and Samuel W. Day, copartners, doing business under the firm name and style of C. H. Van Buren & Co., impleaded with James Jenkins as general assignee of John D. Kline for the benefit of creditors. From an order of the Appellate Division (190 App. Div. 921,179 N. Y. Supp. 596), affirming an interlocutory judgment overruling a demurrer to the complaint, defendants Van Buren and Day appeal. Question, ‘Does the complaint state facts sufficient to constitute a cause of action against the defendants Van Buren and Day,’ certified.

Judgment reversed, question answered in the negative, and demurrer sustained.

See, also, 179 N. Y. Supp. 911.

Appeal from Supreme Court, Appellate Division, Third Department.

E. H. Sykes, of New York City, for appellants.

James Jenkins, of Kingston, for respondent.

McLAUGHLIN, J.

This appeal is by permission from an order of the Appellate Division, Third Department, affirming (two of the justices dissenting) an interlocutoryjudgment overruling a demurrer to the complaint. The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

The complaint alleges, in substance, that on or about the 1st of March, 1913, one John D. Kline ‘as agent, partner or correspondent’ of the appellants Van Buren and Day, took charge of a stock and grain brokerage office at Kingston, N. Y.; that between the date named and June 1, 1917, he took from various people a large number of orders for the purchase and sale of grain, stocks, bonds, and other securities; transmitted the same to and they were received by said brokers, who had an office in the city of New York; that on the 1st of June, 1917, such brokers were carrying on margin a large number of shares of stock, were holding other shares of stock as collateral security for marginal transactions, were holding large sums of money belonging to various persons whose stocks they were carrying on margin, or had sold without orders from their principals, and without notice of the time and place of sale, all of which orders and transactions came through the Kingston office. Then follows an allegation to the effect that the appellants, on the 1st of June, 1917, had purchased and were carrying upon margin, upon orders received through the Kington office, 10 shares of the capital stock of the American Locomotive Company, for the plaintiff, of the value of $628.22, for which she had paid them, through Kline, certain charges for margins and commissions; that she never ordered the sale of such stock; never received any notice of the time and place of sale; that no demand had been made upon her for additional margins and she does not know whether the appellants still hold such stock or have sold the same and hold the proceeds for her; that prior to the commencement of the action the defendant Jenkins was appointed the general assignee of Kline for the benefit of creditors, and that statements had been rendered to him by appellants which show an indebtedness to Jenkins, as such general assignee, of $11,000; and treating Van Buren and Day as brokers for the principals in the various transactions, there is due from them to such principals, growing out of the orders received through the Kingston office, $55,000; and that by this action a multiplicity of suits to determine the rights of the plaintiff, and the other persons on whose brhalf the action is brought, will be avoided. The judgment demanded is that an accounting be had, to the end that it may be determined the amount of charges which Van Buren and Day have against the plaintiff and others on whose behalf the action is brought; that an apportionment and payment of such charges be made among them and the respective certificates of stock delivered to the owners thereof; that it also be determined the amount of money held by them as proceeds derived from the sale of stocks and transactions in relation to the matters set...