Turecamo v. Frankel

251 A.D. 897, 297 N.Y.S. 234, 1937 N.Y. App. Div. LEXIS 8204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1937
• Status: Published

Opinion

Interlocutory judgment directing defendants as syndicate managers to account to plaintiff, a syndicate member, reversed on the law and the facts, with costs, and complaint dismissed, with costs. It is not alleged the defendants were guilty of fraud, but plaintiff seeks to have defendants, as fiduciaries, account for the number, quality and prices of the securities purchased by them as syndicate managers. The proof clearly establishes that prior to the commencement of the action defendants furnished plaintiff with an account giving him and his accountant the precise information he seeks in this action, and it is admitted the account furnished was correct, in every substantial respect. If defendants, as syndicate managers, fraudulently purchased their own stock and made secret profits, then plaintiff has an adequate remedy at law and cannot maintain this action for an accounting. (Montgomery v. Shear, 182 App. Div. 238; Pelkey v. Pelkey, 236 id. 55; Jackson v. Strong, 222 N. Y. 149.) Inconsistent findings will be reversed and new findings made. Hagarty, Carswell, Johnston and Close, JJ., concur; Taylor, J., dissents and votes to affirm on authority of Marvin v. Brooks (94 N. Y. 71) and Frethey v. Durant (24 App. Div. 58). Settle order on notice.