Ayers v. Williston

Headnote

Ayers v. Williston, 156 App. Div. 939 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,

entered November 15, 1913, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The complaint alleged that plaintiff employed defendants to act as her brokers in the purchase and sale of stocks upon margin and contains two causes of action. In the first cause of action it is alleged that defendants purchased stocks for plaintiff’s account and thereafter converted the same to their own .use. The second cause of action alleged that plaintiff employed defendants to sell stocks “ short ” for her account; that the defendants agreed to make deliveries on account of such short sales by borrowing stocks for that purpose; that plaintiff secured defendants against loss by a margin deposit; that defendants did not borrow said stocks and sustained no losses; that defendants claimed to have sustained losses and appropriated plaintiff’s margin. The answer admitted that on the date set forth in the complaint the “plaintiff opened an ordinary stock trading account with these defendants,” deposited margin and thereafter gave various orders to buy and sell stocks, all of which orders were duly executed and notice thereof given to and accepted by plaintiff. The answer further alleged an account stated and finally denied all allegations in the complaint not expressly admitted.