Stiebel v. Lissberger

Headnote

Stiebel v. Lissberger, 166 App. Div. 164 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 10, 1915, affirming a judgment in favor of defendant entered upon the report of a referee. Plaintiffs were stockbrokers and defendant was one of their customers. The complaint alleged two causes of action for the same indebtedness; one upon an account stated on the 1st day of April, 1907, for the sum of $14,910.15, less the sum of $4,000, which had been paid by the. defendant; and the second upon a series of ten promissory notes made on the 1st day of April, 1907, all past due before the- commencement of the action, totalling with interest the sum of $10,910.15. The answer set up as defenses that the debt arose from gambling transactions and that the account stated and the notes must fall, because procured under false and fraudulent representations by plaintiffs. It also set forth a counterclaim based upon the alleged conversion

by plaintiffs on Febraary 9, 1910, nine months after the commencement of the action, of 200 shares of Union Pacific stock which defendant ordered the plaintiffs to sell; a counterclaim based upon the alleged conversion by the plaintiffs on February 9, 1910, of 200 shares of United States Steel stock which defendant ordered plaintiffs to sell, and a counterclaim based upon the theory that since the account stated and the notes were void for the false and fraudulent representations of the plaintiffs, defendant was entitled to recover back the $4,000 previously paid by him upon the notes which he had already taken up.