Keys v. Leopold
| Decision Date | 24 November 1925 |
| Citation | 149 N.E. 828,241 N.Y. 189 |
| Parties | KEYS v. LEOPOLD et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Lillian G. Keys against James M. Leopold and others. From an order of the Appellate Division (213 App. Div. 760, 210 N. Y. S. 406), reversing an order of the Special Term, which granted a motion to dismiss the complaint, and denying the said motion, defendants appeal, by permission of the Court, which certified a question for answer.
Order of Appellate Division reversed, and that of the Special Term affirmed, and question answered.
Appeal from Supreme Court, Appellate Division, First Department.
Outerbridge Horsey, of New York City, for appellants.
Allen Caruthers, of New York City, for respondent.
The complaint alleges that the defendants and their predecessors, whose obligations they have assumed, are copartners and members of the New York Stock Exchange. Between May, 1903, and July, 1908, relying upon their statement that the plaintiff ‘would make great profits upon her investment with them,’ she paid them the sum of $12,550 ‘to be invested by said copartners for her account,’ and constituted them ‘her true and lawful agents in the premises.’ Since 1916 she has repeatedly demanded an accounting of this principal and of any profits ‘of her said investments as aforesaid,’ but her demand has been refused. Therefore, in 1924, she brought this action in equity to compel the defendants to account and to pay over to her such amount as might be found due. This complaint was dismissed by the Special Term. The Appellate Division reversed such order, but permitted an appeal to this court certifying the question:
‘Did the cause of action alleged * * * accrue within the time limited by law for the commencement of an action thereon?‘
The answer depends upon the meaning to be given the complaint. Clearly it does not allege the creation of an express trust. Neither actually nor impliedly is it stated that the moneys were given to the brokers for investment, they to purchase securities in their own name, sell, reinvest, deal with them as they might think proper, and at the termination of the trust deliver such securities as remained, with any profits that had been gained to the plaintiff, or anything substantially to that effect. Rather the picture presented is that of an ordinary transaction between customer and brokers. The money was given to the defendants for investment. They were to use it for the purchase of stocks or bonds, either (for this is not stated in the complaint) particular securities specified by the plaintiff, or such securities as the brokers chose. In either case, when the investments were once made, the powers of the brokers ceased. Their only duty then was to deliver the securities to the plaintiff or possibly to hold them, and any interest or dividends received therefrom, until a demand by her. That this was the construction placed by her on the arrangement appears by a letter written by her attorney to the defendants three days before the action was begun and used by her in opposition to the motion to dismiss the complaint. ‘Now my position is simply this,’ he says. ‘If you will...
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...time by electing to proceed in equity. Such is the rule where the remedies are concurrent. Rundle v. Allison, 34 N.Y. 180; Keys v. Leopold, 241 N.Y. 189, 149 N.E. 828; Clarke v. Boorman's Executors, 18 Wall. 493, 85 U.S. (493), 21 L.Ed. 904. 'The exception is not applicable in cases of conc......
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...had and received was adequate. Hanover Fire Ins. Co. v. Morse Dry Dock & Repair Co., 270 N.Y. 86, 89, 200 N.E. 589; Keys v. Leopold, 241 N.Y. 189, 193, 149 N.E. 828. It might be argued that these cases can be distinguished from that at bar. In them the two causes of action were strictly con......
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