Rycroft v. Post

Headnote

Rycroft v. Post, 164 App. Div. 942 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 7, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action for conversion of certain stocks. These stocks were carried by the defendants in an account called “Henry Clay Pierce, Esq., Special,” and were all sold on or prior to August 18, 1903, when the account showed a loss of $12,662.63, which loss was paid by Mr. Pierce. The defendants alleged that they never knew Mrs. Rycroft in any of the transactions involved. The account was opened by Mr. Pierce. The defendants looked to Pierce for margin and he furnished it. All orders to buy or sell were given by Pierce, and the final loss was paid by him. She never received a statement from Post & Flagg nor asked them for one. It was not until August 2, 1909, that Mrs. Rycroft communicated with Post ' & Flagg with respect to the account or did anything to intimate that their handling’ of it had been in any respect improper. Prior to the bringing of the suit, Mrs. Rycroft sued Mr. Pierce • for the conversion of all these stocks except YirginiaCarolina Chemical. The complaint in that áction was verified January 9, 1911. The answer of the defendant in that action contained, among other things, a counterclaim for money loaned and advanced for carrying these stocks and the Yirginia-Carolina Chemical, including the payment of the $12,662.63 deficit on the final closing of the account. After various proceedings, that action was settled, Mr. Pierce paying the plaintiff $30,000 and canceling loans and advances which he had made to her aggregating almost $44,000, and receiving a general

release in the usual form. This release is pleaded by the defendants here as a bar to this action.