Opinion
May 1, 1944.
The action is by a customer against stockbrokers to recover damages for loss resulting from defendants' failure to execute orders to sell certain stocks which defendants were carrying for plaintiff on margin. The complaint contains three causes of action. The answer, in addition to denials, sets forth three separate affirmative defenses to the first cause of action, including the defense of ratification, which is pleaded to each cause of action. Defendants moved for summary judgment under rule 113 of the Rules of Civil Practice. The motion was denied and defendants appeal. Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Assuming, as alleged in the complaint, that plaintiff gave orders to defendants to sell her stock and they failed to execute the orders, it clearly appears from the exhibits and her examination before trial that plaintiff, with full knowledge, ratified the acts which had previously occurred and of which she now complains. While the moving affidavit of Loeb is technically defective in that the affiant failed to state expressly that he had knowledge of the facts and his belief that the action had no merit, respondent did not raise these formal objections at the Special Term. If she had they readily could have been met and, therefore, she may not be heard to urge them for the first time on appeal. Johnston, Adel and Aldrich, JJ., concur; Carswell, Acting P.J., and Lewis, J., concur except as to the first cause of action and, on the ground that a question of fact is presented, vote to affirm the order insofar as it denies the motion to dismiss such cause of action.