Irving Weis & Co. v. Offenberger

CourtNew York City Municipal Court
Writing for the CourtMURRAY H. PEARLMAN
Citation220 N.Y.S.2d 1001,31 Misc.2d 628
PartiesIRVING WEIS AND COMPANY, Plaintiff, v. Martin OFFENBERGER, Defendant.
Decision Date16 November 1961

Page 1001

220 N.Y.S.2d 1001
31 Misc.2d 628
IRVING WEIS AND COMPANY, Plaintiff,
v.
Martin OFFENBERGER, Defendant.
Municipal Court of City of New York, Borough of Brooklyn,
Fifth District.
Nov. 16, 1961.

Page 1002

Kalman V. Gallop, New York City, for plaintiff.

Norman Annenberg, New York City, for defendant.

MURRAY H. PEARLMAN, Justice.

Plaintiff 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 margin, 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 defendant'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 examination before trial and no question is raised by him with respect to the sale or the value of the aforesaid 100 shares of stock.

[31 Misc.2d 629] Defendant resists plaintiff's application for summary judgment on a defense and counterclaim which alleges that 'During the period February 1959 until and including October 1960 the plaintiff deliberately and wilfully induced the defendant to engage in trades and transactions in securities with the plaintiff by extending to the defendant excessive credit for the purchasing and carrying of, and trading in, securities, in circumvention of the credit and margin requirements prescribed by the Board of Governors of the Federal Reserve System in Regulation T, of the Regulations of said Board, said regulation being promulgated pursuant to the Securities Exchange Act of 1934, and particularly to Sections 7 and 8A of that Act [15 U.S.C.A. §§ 78a et seq., 78g, 78h(a)]; to the damage of the defendant in the sum of $2582.45.'

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,

Page 1003

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, Rules of Civil Practice, would serve no useful purpose if frivolous and transparently insufficient proofs such as have been brought forward here were held to create a triable issue. Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110, 45 A.L.R. 1041; Dwan v. Massarene, 199 App.Div. 872, 192 N.Y.S. 577; Strasburger v. Rosenheim, 234 App.Div. 544, 255 N.Y.S. 316; Gravenhorst v. Zimmerman, 236 N.Y. 22, 139 N.E. 766, 27 A.L.R....

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13 practice notes
  • Pearlstein v. Scudder & German, No. 92
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Julio 1970
    ...(1967); E. F. Hutton & Co. v. Weinberg, 1961-64 CCH Sec.L.Rep. ¶ 91.332 (Sup.Ct. N.Y. 1964); Irving Weis & Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001 (Mun.Ct. 1961). Pearlstein does not contest his liability for the original contract price, but rather seeks to limit his l......
  • Golob v. Nauman Vandervoort, Inc., Civ. No. C-71-15.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 28 Julio 1972
    ...1969); Mercury Investment Co. v. A. G. Edwards & Sons, 295 F.Supp. 1160 (S. D. Texas 1969); Irving Weis & Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S. 2d 1001 Secondly, plaintiffs contend they are entitled to damages on the basis of a Rule 10b-5 violation of the Securities Exchang......
  • Pearlstein v. Scudder & German, 62 Civ. 1383.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 24 Julio 1968
    ...by Congress. But see E. F. Hutton & Co. v. Weinberg, CCH Fed.Sec.L.Rep. ¶ 91,332 (Sup.Ct.1964); Irving Weis & Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001 (N.Y.City Mun.Ct.1961) (characterized by Professor Loss as a "confused opinion in which the court referred to Regu......
  • A. M. Kidder & Co. v. Clement A. Evans & Co., No. 40926
    • United States
    • Georgia Court of Appeals
    • 11 Marzo 1965
    ...inability to enforce civil rights from acts which would have been lawful except for the statute. Irving Weis and Company v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001, Page 274 The view taken by the Federal Government of its regulation may be helpful in evaluating the needs of public po......
  • Request a trial to view additional results
13 cases
  • Pearlstein v. Scudder & German, No. 92
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Julio 1970
    ...(1967); E. F. Hutton & Co. v. Weinberg, 1961-64 CCH Sec.L.Rep. ¶ 91.332 (Sup.Ct. N.Y. 1964); Irving Weis & Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001 (Mun.Ct. 1961). Pearlstein does not contest his liability for the original contract price, but rather seeks to limit his l......
  • Golob v. Nauman Vandervoort, Inc., Civ. No. C-71-15.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 28 Julio 1972
    ...1969); Mercury Investment Co. v. A. G. Edwards & Sons, 295 F.Supp. 1160 (S. D. Texas 1969); Irving Weis & Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S. 2d 1001 Secondly, plaintiffs contend they are entitled to damages on the basis of a Rule 10b-5 violation of the Securities Exchang......
  • Pearlstein v. Scudder & German, 62 Civ. 1383.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 24 Julio 1968
    ...by Congress. But see E. F. Hutton & Co. v. Weinberg, CCH Fed.Sec.L.Rep. ¶ 91,332 (Sup.Ct.1964); Irving Weis & Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001 (N.Y.City Mun.Ct.1961) (characterized by Professor Loss as a "confused opinion in which the court referred to Regu......
  • A. M. Kidder & Co. v. Clement A. Evans & Co., No. 40926
    • United States
    • Georgia Court of Appeals
    • 11 Marzo 1965
    ...inability to enforce civil rights from acts which would have been lawful except for the statute. Irving Weis and Company v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001, Page 274 The view taken by the Federal Government of its regulation may be helpful in evaluating the needs of public po......
  • Request a trial to view additional results

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