Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Griesenbeck

• Citation: 21 N.Y.2d 688,234 N.E.2d 456,287 N.Y.S.2d 419
• Court: New York Court of Appeals
• Decision Date: 29 December 1967
• Parties: , 234 N.E.2d 456 MERRILL, LYNCH, PIERCE, FENNER & SMITH CORPORATED, Appellant, v. Lou GRIESENBECK, Respondent.

Page 419

287 N.Y.S.2d 419

21 N.Y.2d 688, 234 N.E.2d 456

MERRILL, LYNCH, PIERCE, FENNER & SMITH CORPORATED, Appellant, v. Lou GRIESENBECK, Respondent.

Court of Appeals of New York.

Dec. 29, 1967.

Walter G. McNeill, Howard T. Sprow and James B. May, New York City, for appellant.

Abraham Kaufman and Pieter J. Kooiman, New York City, for respondent.

MEMORANDUM.

The order should be affirmed with costs on the opinion at the Appellate Division. We would only add that an order, such as the one before us, which directs arbitration is a final order in a special proceeding and appealable as such to this court. (See Matter of Wilaka Constr. Co. (New York City Housing Auth.), 17 N.Y.2d 195, 204, 269 N.Y.S.2d 697, 703, 216 N.E.2d 696, 700.) The mere fact that this order was made on a motion in a pending action does not impair its finality. (See Marshall Ray Corp. v. Haedke & Co., 16 N.Y.2d 967, 265 N.Y.S.2d 284, 212 N.E.2d 771; Agress v. Turkmenilli, 303 N.Y. 797, 799, 103 N.E.2d 900; Gang v. Gang, 253 N.Y. 356, 358, 171 N.E. 568, 569.) To the extent that decisions such as Matter of Schneider v. Statmaster Corp., 12 N.Y.2d 887, 237 N.Y.S.2d 998, 188 N.E.2d 264 and Wolstenholme Co. v. Ria Herlinger Fabrics, 300 N.Y. 751, 92 N.E.2d 458 held to the contrary, they are explicitly overruled.

KEATING, Judge (dissenting).

Section 232 of the New York Commodity Exchange, Inc. by-laws requires arbitration of controversies between a member and member firms 'arising out of any transaction in commodities made on the Exchange'.

The transaction at issue in this case was made on the London Metal Exchange, not the New York Commodities Exchange. There is no question that when Merrill Lynch sold copper futures contracts short on the London Exchange for defendant's account, this Related to the drop in the price of copper on the New York Commodities Exchange, where the plaintiff held copper futures contracts which had been purchased on margin for defendant's account.

Nevertheless, the only transaction which took place on the New York Commodities Exchange was the purchase and sale of copper futures for defendant's account. These are not involved here. The fortuitous drop in the price of copper no doubt Led to the purchase on the London Metal Exchange, but this was a separate transaction. Surely, if Griesenbeck had assaulted a Merrill Lynch broker because he disagreed with his handling of Griesenbeck's account on the Commodities Exchange, this could not properly be considered a controversy 'arising out of a transaction in commodities on the Exchange'. Such a controversy would be independent and separate, yet causally related. The same is true of the purchase on...