
    Samuel A. Rauch, Plaintiff, v. Francis D. Winslow and Others, Defendants.
    City Court of New York, New York County,
    December 8, 1931.
    
      
      May & Jacobson, for the plaintiff.
    
      Hays, St. John, Abramson & Schulman, for the defendants,
   Ryan, J.

This is an application by the defendants for an order striking them out as defendants in this action and substituting other parties as defendants, or, in the alternative, for an order adding such other persons as parties defendant and requiring plaintiff to serve a supplemental summons joining such other persons. The request for substitution is made on the ground that the present defendants have paid to the defendants sought to be substituted the amount involved in this action. The prayer for the alternative relief is based on the contention that the persons sought to be brought in are necessary parties defendant.

The action is to recover moneys alleged to have been appropriated and withheld from plaintiff’s assignor by the defendants. Defendants are stockbrokers. Plaintiff was their customer. Without detailing the transactions it appears that defendants upon being instructed by plaintiff to turn over the amount due her to a third person delivered only part thereof, the sum not paid being the amount now sought to be recovered. The defendants in their answer set forth facts showing that, among other dealings, plaintiff’s assignor ordered J. S. Bache & Co., the persons now sought to be substituted or brought in as additional defendants, to purchase 100 shares of Southern Pacific stock, the same to be cleared through the defendants; that plaintiff’s assignor requested such order to be canceled, but that it was claimed by Bache & Co. that the attempted compliance was too late. Delivery of the stock was tendered to defendants by Bache & Co., but acting upon instructions from plaintiff’s assignor they refused to accept the same. The stock was subsequently sold at a price less than the amount for which it was purchased. Payment of the difference was demanded of the defendants by Bache & Co., whereupon under the constitution, rules and regulations of the New York Stock Exchange, of which both defendants and Bache & Co. were members, complaint to said Stock Exchange and demand for payment was made and the exchange thereafter directed defendants to pay to Bache & Co. the sum claimed, which payment was made and charged by defendants to plaintiff’s assignor’s account. It is by reason of this payment that the defendants claim they are entitled to the relief requested. The difficulty with their position is that plaintiff makes no claim or seeks no relief against Bache & Co.. She is not concerned with the question of whether or not the defendants were compelled under the ruling of the Stock Exchange to pay Bache & Co. or whether or not they will be able to secure restitution from Bache & Co.

It is not at all necessary, so far as the plaintiff is doncerned, that there be a substitution of parties here or that additional parties be brought in in order that she may have a complete determination of her rights. It may be that in the event the defendants are found Hable to the plaintiff, Bache & Co. will be liable over to defendants, in which event the relief to which the defendants would be entitled could be secured by an order permitting them to issue a supplemental summons and serving a pleading alleging their claim against Bache & Co. But said relief is not here sought and hence their right thereto is not considered. Motion denied, with ten dollars costs. Order signed.  