380 P.2d 56 (1963)
Harry E. ROEMER and Lo Ree Roemer, Plaintiffs in Error,
v.
SINCLAIR REFINING COMPANY, a corporation, Defendant in Error.
No. 20173.
Supreme Court of Colorado. In Department.
January 28, 1963.
Rehearing Denied April 8, 1963.
*57 Robert E. McLean, Marjorie Worland McLean, Denver, Benjamin W. Fann, Colorado Springs, for plaintiffs in error.
Sternberg & Taylor, Littleton, for defendant in error.
MOORE, Justice.
We will refer to plaintiffs in error as defendants, and to defendant in error as Sinclair.
Sinclair commenced the action for specific performance upon its election to exercise an alleged option to purchase certain real estate in Castle Rock, Colorado, which had been occupied by it since 1932 under a lease and option agreement entered into with the predecessor in interest of defendants.
Defendants answered the complaint and filed a counterclaim for damages allegedly sustained by them resulting from the alleged unlawful withholding by Sinclair of the real estate from their use.
A "Request for Admission of Facts and Genuineness of Documents" was filed by Sinclair relating to a series of lease agreements entered into by it and the defendants or their predecessors in interest. The genuineness of all of said documents, the same not being denied, stands admitted under the provisions of Rule 36, R.C.P.Colo., and Sinclair filed its motion for summary judgment. Following a hearing the trial court granted the motion and decreed specific performance of the option to purchase as contended by Sinclair. Defendants seek review by writ of error.
The uncontroverted facts as revealed by the pleadings and the admissions are summarized as follows:
Under date of March 25, 1932, Sinclair leased the property in dispute from defendants' predecessors in title for a period of ten years or until March 26, 1942. The contract was in writing and provided, inter alia, that lessee should have the right to conduct and operate a service station on the premises, and that:
"It is understood and agreed by and between the parties hereto that in consideration of the premises, Lessors hereby give and grant to Lessee the exclusive option and privilege of purchasing the above described premises and all improvements, buildings, structures, equipment, appliances, furniture, fixtures, unloading rack and unloading facilities for the sum of SIX THOUSAND SIX HUNDRED SEVENTY-THREE and 80/100 (6673.80) DOLLARS in cash at any time during the term of this lease or any extension thereof; * * *".
February 24, 1941, an extension agreement was entered into between Sinclair and the original lessors under the terms of which the lessors agreed to make improvements on the premises "in order to induce Lessee to continue said lease in effect"; and extended the lease at a reduced rental for a period of five years from the date of completion of the improvements with an option to lessee to renew for an additional five years upon giving of a notice of election to exercise said option. The instrument then provides, inter alia:
"3. * * * Upon giving the notice aforesaid, the term shall be so extended *58 and all the provisions of said lease as hereby supplemented and amended shall continue in full force and effect during such extended term.

"4. The sum provided for in the option to purchase said premises granted Lessee in said lease shall be increased from SIXTY-SIX HUNDRED SEVENTY-THREE AND 80/100 ($6673.80) DOLLARS to SEVENTY-SEVEN HUNDRED AND NO/100 ($7700.00) DOLLARS upon the completion of said service stall addition and said option shall remain in full force and effect during the term as hereby extended or any further extensions or renewals thereof.

* * * * * *
"7. The rest and remaining terms and conditions of said lease shall remain in full force and effect except as specifically modified and amended herein." (Emphasis supplied.)
A supplemental agreement was entered into August 4, 1941, amending the instrument last mentioned in some particulars not pertinent to the present controversy.
March 6, 1946, a further extension agreement was entered into which provides, inter alia, that:
"2. The purchase option contained in said original lease as amended in said extension agreement aforesaid shall remain in full force and effect during the term as hereby extended.

* * * * * *
"The rest and remaining terms and conditions of said original lease as heretofore extended and supplemented shall remain in full force and effect except as specially modified and amended herein."
May 7, 1951, another extension agreement was entered into continuing the original agreement, as amended, for five years beginning July 1, 1951, and ending June 30, 1956, with an option to again extend the term of the lease for an additional five year period beginning July 1, 1956. This extension agreement provided that by giving notice on or before May 1, 1956, "the term shall be so extended and all of the provisions of said original lease as extended shall continue in force during such extended term." This extension agreement also states that:
"All the rest and remaining terms and provisions of said original lease as extended shall be and remain in full force and effect except as specifically modified herein."
On February 29, 1956, plaintiff gave defendants notice of its election to exercise the option to extend said lease for an additional term of five years commencing July 1, 1956, "subject to all the terms and provisions in said lease as amended."
Based upon all of the above, plaintiff on June 12, 1961, notified defendants by registered mail, in accordance with the terms of the original lease of March 25, 1932, of its election to exercise its option to purchase the premises. Defendants refused to convey the property, and now contend that Sinclair had no option to buy at the time it gave the notice last above mentioned. The trial court ruled that there was no disputed question of fact but only a question of law as to whether the several instruments referred to above operated to extend the option to purchase. The trial court held, and we agree, that the question is one of law and under the record presented it could properly be determined upon a motion for summary judgment.
It is unmistakably clear that it was the intention of the parties that all the terms and provisions of the original document were to be continued in effect except as modified by the subsequent instruments. Throughout the entire period of time covered by the original contract and extensions thereof, all of the documents executed had reference to renewals and amendments of the original contract. The subsequent renewals as a matter of law operated to continue the option to purchase on the terms set forth in the amendment of February 24, 1946, in which an increase of the *59 purchase price by approximately $1,000.00 was agreed to by the parties.
The contention of counsel for defendants, that the enforcement of specific performance upon exercise of the option to purchase under the facts shown here would amount to a violation of the rule against perpetuities, is wholly without merit and warrants no futher consideration.
The judgment is affirmed.
DAY and PRINGLE, JJ., concur.


243 S.C. 1 (1963)
132 S.E.2d 18
D. B. BRIDGES and American Guarantee and Liability Insurance Company, Appellants
v.
WYANDOTTE WORSTED COMPANY, Respondent.
18093
Supreme Court of South Carolina.
July 8, 1963.
*2 Messrs. Leatherwood, Walker, Todd & Mann, of Greenville, for Appellants.
*3 Messrs. Haynsworth, Perry, Bryant, Marion & Johnstone, of Greenville, for Respondent.
*4 July 8, 1963.
LEWIS, Justice.
This action was instituted in the Court of Common Pleas against the defendant Wyandotte Worsted Company to recover damages sustained by the plaintiff Bridges from an electrical shock received while engaged, as an employee of P.E. Collins Electric Company, in the replacement of an electric transmission line of the defendant at its plant in Greenville County. Collins Electric Company had contracted with the defendant to do the work and the plaintiff Bridges was a member of the crew assigned by Collins to do the job. This appeal is by the plaintiff from an order of the lower court dismissing the action upon the ground that the court was without jurisdiction of the cause and that plaintiff's claim was within the exclusive jurisdiction of the South Carolina Industrial Commission, because the work being performed by the subcontractor Collins, the plaintiff's employer, was a part of the trade, business or occupation of the defendant, within the meaning of the Workmen's Compensation Law. The basic issues to be decided in this appeal concern whether or not the lower court properly determined the foregoing jurisdictional question. This case was before us on a prior appeal involving a question of parties. 239 S.C. 37, 121 S.E. (2d) 300.
The defendant Wyandotte Worsted Company is a manufacturer of textile woolen goods and operates a plant at Conestee, in Greenville County, South Carolina. Its employees are covered under the Workmen's Compensation Law. It owned and operated its own hydro-electric system, from which it derived a portion of the electricity used in the operation of its plant. The balance of its needed electricity was purchased from Duke Power Company. The electricity purchased from Duke was received at the defendant's property line and brought to its plant over a transmission line owned and maintained by the defendant. The electricity generated by the defendant's hydro-electric plant and that purchased from Duke was brought into the plant of the defendant at a central point *5 where it was reduced by the defendant's electrical system from a voltage of 550 to 220 or 110 as required and then distributed over the wiring system of the defendant to the machinery in the mill. The defendant's complete electrical system, including the transmission lines from its property line to the plant, was owned and maintained by it. The defendant regularly employed a crew of men who maintained the electrical system, two of whom were experienced and competent electricians in the handling of electrical work on energized, or so-called "hot" electrical lines.
In June, 1960, due to an increase in the amount of machinery in the plant of the defendant, a three-phase transmission line of the defendant, over which electricity was brought into the plant from Duke Power Company, became overloaded. This overload made it necessary to replace it with a heavier duty line. The work on the line had to be done on a Sunday when the defendant's machinery was not operating. The defendant's crew had on a prior occasion done similar work on this line and maintained it, but, due to the excessive amount of overtime that its men had already worked, the defendant felt that they should have a rest on the particular Sunday selected to replace the line and, therefore, contracted with P.E. Collins Electric Company, an electrical contractor, to do the work. The record shows that in the performance of this work Collins occupied the status of an independent contractor. Collins had on two prior occasions been called in by the defendant to do electrical work at its plant.
The plaintiff Bridges was an employee of Collins Electric Company and a member of the crew assigned by Collins to replace the above mentioned transmission line at the plant of the defendant. While so engaged on Sunday, June 19, 1960, the plaintiff sustained injuries from electrical shock when he came into contact with an energized electric line.
Collins Electric Company, by whom plaintiff Bridges was employed, was operating under the South Carolina Workmen's Compensation Law and Bridges was paid benefits to *6 which he was entitled under such law by the American Guarantee and Liability Company, the Workmen's Compensation carrier of Collins Electric Company.
This action was subsequently instituted by the plaintiff Bridges against the defendant to recover for his injuries, alleging that they resulted from the negligent and reckless acts of an employee of the defendant in turning on the electricity and re-energizing the lines upon which he was working. Since the American Guarantee and Liability Insurance Company paid Workmen's Compensation benefits to the plaintiff Bridges, it was subrogated to Bridges' claim against the defendant to the extent of such payments, and was, therefore, joined as a co-plaintiff in this action.
Among other defenses, the answer of the defendant alleged that the Court of Common Pleas was without jurisdiction to entertain this common law action for tort against the defendant Wyandotte Worsted Company, since Wyandotte was operating under the provisions of the South Carolina Workmen's Compensation Law, and Collins Electric Company, the employer of Bridges, was at the time Bridges received his injuries, engaged in the performance of work which was a part of the defendant's trade, business or occupation within the meaning of the Workmen's Compensation Act, particularly Section 72-111 of the 1962 Code of Laws, which is as follows:
"When any person, in this section and §§ 72-113 and 72-114 referred to as `owner,' undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 72-113 to 72-116 referred to as `subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him."
*7 Upon the trial of the case and at the conclusion of the testimony, the trial judge sustained the foregoing defense and granted defendant's motion for a directed verdict in its favor, holding that the court was without jurisdiction to entertain the present common law action for tort against the defendant, in that the work in which the subcontractor Collins Electric Company, the employer of the plaintiff Bridges, was engaged at the time was a part of the defendant's trade, business or occupation and, therefore, under the provisions of the Workmen's Compensation Act the plaintiff's claim was within the exclusive jurisdiction of the South Carolina Industrial Commission. The plaintiff has appealed from the foregoing ruling of the lower court.
In holding that the court had no jurisdiction to entertain the present common law action for damages, because the plaintiff's employment came within the coverage afforded by the Workmen's Compensation Act, the trial judge withdrew the case from the jury and determined all issues, both of law and fact, relating to jurisdiction. The first question to be decided arises under the exception of the plaintiff, which charges error on the part of the lower court in deciding the factual issues relating to jurisdiction and in not submitting such to the jury for determination.
When the trial judge decided all issues relating to jurisdiction in this case, he followed the rule approved by this Court. For "[i]t has been consistently held that whether the claim of an injured workman is within the jurisdiction of the Industrial Commission is a matter of law for decision by the court, which includes the finding of the facts which relate to jurisdiction." Adams v. Davison-Paxon Co., 230 S.C. 532, 96 S.E. (2d) 566; Knight v. Shepherd, 191 S.C. 452, 4 S.E. (2d) 906; Tedars v. Savannah River Veneer Company, 202 S.C. 363, 25 S.E. (2d) 235, 147 A.L.R. 914; McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E. (2d) 872; Miles v. West Virginia Pulp & Paper Co., 212 S.C. 424, 48 S.E. (2d) 26; Watson v. Wannamaker & Wells, Inc., 212 S.C. 506, 48 S.E. (2d) 447; Gordon v. *8 Hollywood-Beaufort Package Corp., 213 S.C. 438, 49 S.E. (2d) 718; Holland v. Georgia Hardwood Lbr. Co., 214 S.C. 195, 51 S.E. (2d) 744; Younginer v. J.A. Jones Const. Co., 215 S.C. 135, 54 S.E. (2d) 545; Horton v. Baruch, 217 S.C. 48, 59 S.E. (2d) 545; Brown v. Moorhead Oil Co., 239 S.C. 604, 124 S.E. (2d) 47; Pyett v. Marsh Plywood Corp., 240 S.C. 56, 124 S.E. (2d) 617; Allen v. Phinney Oil Co., 241 S.C. 173, 127 S.E. (2d) 448.
The plaintiff does not, however, question the fact that the lower court followed the law in deciding the jurisdictional question, including the factual issues necessary to such determination, but says that the law is wrong and the rule stated in Adams v. Davison-Paxon, and consistently followed by this Court, should be overruled. Permission was granted to argue against further adherence to the rule.
The plaintiff takes the position that, when the court withdrew from the consideration of the jury the factual issue of whether the work being done by the plaintiff was a part of the general business of the defendant, he was deprived of his right to have the jury pass upon the disputed issues of fact. We think that the rule stated in Adams v. Davison-Paxon is sound and we adhere to it.
The rule in Adams v. Davison-Paxon is not peculiar to issues concerning jurisdiction in Workmen's Compensation cases. Jurisdictional questions arising under motions to dismiss the service of pleadings on supposed agents of foreign corporations have been held to present issues for determination by the court and not a jury. Bargesser v. Coleman Co., 230 S.C. 562, 96 S.E. (2d) 825. The rule is based upon the principle that "[e]very court has the power and duty to determine whether or not it has jurisdiction of a cause presented to it for determination," which includes the power "to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction." 21 C.J.S. Courts § 113, p. 174, 14 Am. Jur. 368, Section 168.
*9 The issue of jurisdiction is basically one of law. It involves the determination by the court of its right to proceed with litigation. A decision of this question by the court deprives a litigant of no right to a jury trial of the issue of liability because, if the court has no jurisdiction, the litigants have no rights which they may assert in that court. The right to have a jury pass upon the controverted factual issues must of necessity relate to the assertion of the right of the litigant which has been allegedly violated, which presupposes a court having jurisdiction to grant the relief sought. The determination of the jurisdictional question by the court is not a denial of any constitutional right of a litigant to a jury trial, but simply a determination of the forum in which those rights may properly be asserted. The decision of the question of whether the court has jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.
The plaintiff argues, however, that the question raised by the defendant as to the applicability of the Workmen's Compensation Act is not one of lack of jurisdiction in the court but a want of a cause of action in the plaintiff. It is then contended that, since the issue is one of a want of a cause of action in the plaintiff, the merits of the cause are involved, entitling the plaintiff to a jury trial of the factual issues. Contrary to the position of the plaintiff, the decisions of this Court, cited hereinabove, consistently hold that the question of the applicability of the Workmen's Compensation Act is one involving the jurisdiction of the court.
The decision in Googe v. Speaks, 194 S.C. 206, 9 S.E. (2d) 439, relied upon by the plaintiff, is not inconsistent with the above cited cases. The defense that the claim of the plaintiff was within the exclusive jurisdiction of the Industrial Commission was not plead in the answer of the defendant in the Googe case, and the court held that the application of the Workmen's Compensation Act was not an issue in the case because not set up by way of the special defense. The Googe case simply held that the manner of raising the question *10 of the applicability of the Workmen's Compensation Act is procedural and must be raised by plea. If the Act applies, the court has no jurisdiction. The defendant has plead the Workmen's Compensation Act in its answer and the question is properly presented, under the Googe case, as to whether or not the employment of the plaintiff Bridges was covered by the terms of the Act, that is whether or not the Industrial Commission has exclusive jurisdiction of the plaintiff's claim.
The plaintiff also cites the case of Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed. 953 in support of his contention that we should overrule the principle stated in Adams v. Davison-Paxon. In the Byrd decision, it was apparently held that in Federal diversity cases jurisdictional factual issues should be submitted to the jury for determination. In reaching its decision, the United States Supreme Court recognized the rule in South Carolina as expressed in Adams v. Davison-Paxon, but concluded that it was not required to follow our decisions upon the question. The plaintiff concedes that the Byrd case is not binding authority here, and we do not consider it persuasive.
The duty and the responsibility clearly rested upon the trial judge to determine all issues involved in a decision of the jurisdictional question raised in the answer of the defendant, and he committed no error in so doing.
The plaintiff next contends that the lower court erred in concluding under the evidence that the work contracted to be done by plaintiff's employer was a part of the trade, business or occupation of the defendant within the meaning of Section 72-111, supra.
In determining whether an employee falls within the coverage afforded by Section 72-111, the basic test is whether or not the work being done is a part of the general trade, business or occupation of the owner. Once it is established that the work being done by the subcontractor was a part of the general business of the owner within the meaning of Section 72-111, even though the subcontractor might occupy *11 the status of an independent contractor, the employees of the subcontractor so engaged are limited under Section 72-121 of the 1962 Code of Laws to the exclusive remedy of the Workmen's Compensation Laws. Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E. (2d) 825; Adams v. Davison-Paxon Co., supra, 230 S.C. 532, 96 S.E. (2d) 566, and cases therein cited; Bell v. South Carolina Electric and Gas Co., 234 S.C. 577, 109 S.E. (2d) 441.
Due to the many different factual situations which arise, no easily applied formula can be laid down for the determination of whether or not the work in a given case is a part of the general trade, business or occupation of the principal employer. Each case must be determined on its own facts. Marchbanks v. Duke Power Co., supra, 190 S.C. 336, 2 S.E. (2d) 825.
It is especially difficult to lay down any hard and fast rule with regard to such activities as repair and maintenance. The practices of different concerns operating in the same field often vary. For example, activities which would be unusual and out of the ordinary in a small business might be a normal activity for a large concern. As stated by Mr. Larson in Section 49.12, page 726, of his work on Workmen's Compensation Law, "the test must be relative, not absolute, since a job of construction or repair which would be a non-recurring and extraordinary undertaking for a small business might well for a large plant be routine activity which it normally expects to cope with through its own staff." Therefore, it is generally recognized that a statute, such as here under consideration, includes work or activities usually or customarily performed by the owner or principal employer in carrying on the general trade or business. 99 C.J.S. Workmen's Compensation § 109b; Larson's Workmen's Compensation Law, Section 49.12.
In the present case, the defendant was engaged in the manufacture of woolen goods. Its machinery was operated by electricity derived in part from its own hydro-electric plant *12 and in part by purchase from Duke Power Company. The work here involved was the repair or replacement of the transmission line owned by the defendant and located on its property, over which electric current, necessary for the operation of its business, was brought into its plant from Duke Power Company. These lines had been replaced on a previous occasion, and customarily maintained, by a qualified crew regularly employed by the defendant. Because the regular employees of the defendant had been overworked and needed rest, the defendant contracted with Collins Electric Company, plaintiff's employer, to make the needed replacements on its transmission lines. The replacement of the lines was made necessary by an overload placed upon them by the addition of machinery in defendant's mill. It is reasonably inferable from the record that the work of replacing the transmission lines in question was not an unusual or extraordinary undertaking, but one customarily done by defendant's employees who were maintained for such purposes. The maintenance and repair of its electrical system was, therefore, made a part of the work done by the defendant in the prosecution of its business of manufacturing woolen goods.
We think that the record clearly sustains the conclusion that the repair or replacement of the electric transmission lines of the defendant by the subcontractor Collins Electric Company, the employer of the plaintiff Bridges, was a part of the work ordinarily and customarily performed by the employees of the defendant in the prosecution of the defendant's business. As such, it was a part of the trade, business or occupation of the defendant within the meaning of Section 72-111, supra. Therefore, the lower court properly held, under the facts of this case, that the employment of the plaintiff was covered under the terms of the Workmen's Compensation Act and that he was accordingly confined to the exclusive remedy therein provided.
The last question to be decided relates to the refusal of the trial judge to permit the plaintiff to introduce certain testimony in reply. After the defendant had *13 concluded its testimony, the plaintiff sought to prove that Collins Electric Company had been called in by the defendant to do electrical work on several occasions, both before and after June 19, 1960, the date of plaintiff's injury. The trial judge permitted testimony that Collins Electric Company had done two electrical jobs for the defendant prior to the date of plaintiff's injury, one in May, 1960 and the other in June, 1960, but refused to admit testimony that Collins had done six electrical jobs for the defendant after plaintiff's injury, five in 1960 and one in 1962. The excluded testimony was offered for the purpose of showing that the work being done by Collins at the time of plaintiff's injury was not a part of the business of the defendant. The plaintiff apparently sought to draw the inference that, since the defendant called in Collins on the occasions in question to do electrical work at its plant, it was not customary for such work to be done by the defendant's employees and that Collins was called in because the defendant was not prepared to handle that particular electrical work.
The record fails to show any abuse of discretion in the exclusion of the foregoing testimony. It is well settled that the admission of evidence is largely within the discretion of the trial judge, and this is especially true with reference to the admission of evidence in reply.
The excluded testimony shows that Collins Electric Company was employed to do electrical work for the defendant on only six occasions over a period of approximately two and one half years after the plaintiff's injury and only twice before. The particular nature of the electrical work done after the injury or the circumstances which brought about its performance by Collins do not appear. The irregularity and infrequency of the work done by Collins made it, in the absence of other showing, and in the light of the record, improbable that the defendant relied upon Collins for maintenance of its electrical system rather than defendant's own employees. Therefore, assuming that the testimony was otherwise admissible, it was without probative value in *14 determining the issue of whether the work being done by Collins at the time of plaintiff's injury was a part of the business of the defendant, and inadmissible on that ground.
Affirmed.
TAYLOR, C.J., and MOSS, BUSSEY and BRAILSFORD, JJ., concur.


537 U.S. 961
VAPNEv.BARNHART, COMMISSIONER OF SOCIAL SECURITY.
No. 02-6087.
Supreme Court of United States.
October 15, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

2
C. A. 2d Cir. Certiorari denied. Reported below: 36 Fed. Appx. 670.


317 U.S. 49 (1942)
BRAVERMAN
v.
UNITED STATES.[*]
No. 43.
Supreme Court of United States.
Argued October 21, 1942.
Decided November 9, 1942.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
*50 Mr. James J. Magner for petitioner in No. 43. Mr. John E. Dougherty for petitioner in No. 44.
Mr. W. Marvin Smith, with whom Solicitor General Fahy was on the brief, for the United States.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
The questions for decision are: (1) Whether a conviction upon the several counts of an indictment, each charging conspiracy to violate a different provision of the Internal Revenue laws, where the jury's verdict is supported by evidence of but a single conspiracy, will sustain a sentence of more than two years' imprisonment, the maximum penalty for a single violation of the conspiracy statute, and (2) whether the six-year period of limitation prescribed by § 3748 (a) of the Internal Revenue Code is applicable to offenses arising under § 37 of the Criminal Code, 18 U.S.C. 88 (the conspiracy statute), where the object of the conspiracy is to evade or defeat the payment of a federal tax.
Petitioners were indicted, with others, on seven counts, each charging a conspiracy to violate a separate and distinct internal revenue law of the United States.[1] On the trial there was evidence from which the jury could have found that, for a considerable period of time, petitioners, with others, collaborated in the illicit manufacture, transportation, *51 and distribution of distilled spirits, involving the violations of statute mentioned in the several counts of the indictment. At the close of the trial, petitioners renewed a motion which they had made at its beginning to require the Government to elect one of the seven counts of the indictment upon which to proceed, contending that the proof could not and did not establish more than one agreement. In response the Government's attorney took the position that the seven counts of the indictment charged as distinct offenses the several illegal objects of one continuing conspiracy, that if the jury found such a conspiracy it might find the defendants guilty of as many offenses as it had illegal objects, and that for each such offense the two-year statutory penalty could be imposed.
The trial judge submitted the case to the jury on that theory. The jury returned a general verdict finding petitioners "guilty as charged," and the court sentenced each to eight years' imprisonment. On appeal the Court of Appeals for the Sixth Circuit affirmed, 125 F.2d 283, on the authority of its earlier decisions in Fleisher v. United States, 91 F.2d 404 and Meyers v. United States, 94 F.2d 433. It found that "From the evidence may be readily deduced a common design of appellants and others, followed by concerted action," to commit the several unlawful acts specified in the several counts of the indictment. It concluded that the fact that the conspiracy was "a general one to violate all laws repressive of its consummation *52 does not gainsay the separate identity of each of the several conspiracies." We granted certiorari, 316 U.S. 653, to resolve an asserted conflict of decisions.[2] The Government, in its argument here, submitted the case for our decision with the suggestion that the decision below is erroneous.
Both courts below recognized that a single agreement to commit an offense does not become several conspiracies because it continues over a period of time, see United States v. Kissel, 218 U.S. 601, 607; cf. In re Snow, 120 U.S. 274, 281-3, and that there may be such a single continuing agreement to commit several offenses. But they thought that, in the latter case, each contemplated offense renders the agreement punishable as a separate conspiracy.
The question whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or several conspiracies is raised on the present record, not by the construction of the indictment, but by the Government's concession at the trial and here, reflected in the charge to the jury, that only a single agreement to commit the offenses alleged was proven. Where each of the counts of an indictment alleges a conspiracy to violate a different penal statute, it may be proper to conclude, in the absence of a bill of exceptions bringing up the evidence, that several conspiracies are charged rather than one, and that the conviction is for each. See Fleisher v. United States, supra; Shultz v. Hudspeth, 123 F.2d 729, 730. But it is a different matter to hold, as the court below appears to have done in this case and in Meyers v. *53 United States, supra, that even though a single agreement is entered into, the conspirators are guilty of as many offenses as the agreement has criminal objects.
The gist of the crime of conspiracy as defined by the statute is the agreement or confederation of the conspirators to commit one or more unlawful acts "where one or more of such parties do any act to effect the object of the conspiracy." The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators and need not be itself a crime. Bannon v. United States, 156 U.S. 464, 468-9; Joplin Mercantile Co. v. United States, 236 U.S. 531, 535, 536; United States v. Rabinowich, 238 U.S. 78, 86; Pierce v. United States, 252 U.S. 239, 244. But it is unimportant, for present purposes, whether we regard the overt act as a part of the crime which the statute defines and makes punishable, see Hyde v. United States, 225 U.S. 347, 357-9, or as something apart from it, either an indispensable mode of corroborating the existence of the conspiracy or a device for affording a locus poenitentiae, see United States v. Britton, 108 U.S. 193, 204, 205; Dealy v. United States, 152 U.S. 539, 543, 547; Bannon v. United States, supra, 469; Hyde v. Shine, 199 U.S. 62, 76; Hyde v. United States, supra, 388; Joplin Mercantile Co. v. United States, supra.
For when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.
*54 The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for "The conspiracy is the crime, and that is one, however diverse its objects." Frohwerk v. United States, 249 U.S. 204, 210; Ford v. United States, 273 U.S. 593, 602; United States v. Manton, 107 F.2d 834, 838. A conspiracy is not the commission of the crime which it contemplates, and neither violates nor "arises under" the statute whose violation is its object. United States v. Rabinowich, supra, 87-9; United States v. McElvain, 272 U.S. 633, 638; see United States v. Hirsch, 100 U.S. 33, 34, 35. Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U.S. 299, 301-4; Albrecht v. United States, 273 U.S. 1, 11-12. The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute, § 37 of the Criminal Code. For such a violation, only the single penalty prescribed by the statute can be imposed.
Petitioner Wainer contends that his prosecution was barred by the three-year statute of limitations, 18 U.S.C. § 582, since he withdrew from the conspiracy more than three, although not more than six, years before his indictment. This Court, in United States v. McElvain, 272 U.S. 633, 638, and United States v. Scharton, 285 U.S. 518, held that the three-year statute of limitations applicable generally to criminal offenses barred prosecution for a conspiracy to violate the Revenue Acts, since it was not within the exception created by the Act of November 17, 1921, 42 Stat. 220, now § 3748 (a) (1) of the Internal Revenue Code, which provided a six-year statute of limitations "for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, *55 whether by conspiracy or not." To overcome the effect of these decisions, that Act was amended, Revenue Act of 1932, 47 Stat. 169, 288, by the addition of a second exception, which provided a six-year statute of limitations "for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof," and by the addition of a new paragraph, reading as follows:
"For offenses arising under section 37 of the Criminal Code, where the object of the conspiracy is to attempt in any manner to evade or defeat any tax or the payment thereof, the period of limitation shall also be six years."
To be within this last paragraph it is not necessary that the conspiracy have as its object the commission of an offense in which defrauding or attempting to defraud the United States is an element. It is enough that the conspiracy involves an attempt to evade or defeat the payment of federal taxes, which was among the objects of the conspiracy of which petitioner was convicted. Enlargement, to six years, of the time for prosecution of such conspiracies was the expressed purpose of the amendment. See H.R. Rep. No. 1492, 72d Cong., 1st Sess., 29.
We do not pass upon petitioner Wainer's argument that his plea of former jeopardy should have been sustained, since the earlier indictment to which he pleaded guilty and which he insists charged the same offense as that of which he has now been convicted, is not a part of the record.
The judgment of conviction will be reversed and the cause remanded to the District Court, where the petitioners will be resentenced in conformity to this opinion.
Reversed.
NOTES
[*]  Together with No. 44, Wainer v. United States, also on writ of certiorari, 316 U.S. 653, to the Circuit Court of Appeals for the Sixth Circuit.
[1]  The seven counts respectively charged them with conspiracy, in violation of § 37 of the Criminal Code, unlawfully (1) to carry on the business of wholesale and retail liquor dealers without having the special occupational tax stamps required by statute, 26 U.S.C. § 3253; (2) to possess distilled spirits, the immediate containers of which did not have stamps affixed denoting the quantity of the distilled spirits which they contained and evidencing payment of all Internal Revenue taxes imposed on such spirits, 26 U.S.C. § 2803; (3) to transport quantities of distilled spirits, the immediate containers of which did not have affixed the required stamps, 26 U.S.C. § 2803; (4) to carry on the business of distillers without having given bond as required by law, 26 U.S.C. § 2833; (5) to remove, deposit and conceal distilled spirits in respect whereof a tax is imposed by law, with intent to defraud the United States of such tax, 26 U.S.C. § 3321; (6) to possess unregistered stills and distilling apparatus, 26 U.S.C. § 2810; and (7) to make and ferment mash, fit for distillation, on unauthorized premises, 26 U.S.C. § 2834.
[2]  Compare the decision below and those in Beddow v. United States, 70 F.2d 674, 676 (C.C.A. 8th); Yenkichi Ito v. United States, 64 F.2d 73, 77 (C.C.A. 9th); and Olmstead v. United States, 19 F.2d 842, 847 (C.C.A. 9th), with those in United States v. Mazzochi, 75 F.2d 497, 498 (C.C.A. 2nd); Short v. United States, 91 F.2d 614, 622 (C.C.A. 4th); Powe v. United States, 11 F.2d 598, 599 (C.C.A. 5th); and United States v. Anderson, 101 F.2d 325, 333 (C.C.A. 7th).


295 So.2d 718 (1974)
PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, inc., Appellant,
v.
GAC PROPERTIES, INC., a Florida Corporation, et al., Appellees.
No. 73-1448.
District Court of Appeal of Florida, Third District.
June 11, 1974.
*719 Weissenborn, Burr & Hyman, Miami, for appellant.
Pearson & Josefsberg, Miami, Goldstein, Franklin & Schrank, Norman S. Klein, North Miami Beach, for appellees.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
PER CURIAM.
The appellant, plaintiff in the trial court, is a condominium association formed pursuant to Chapter 711, Florida Statutes, F.S.A. The corporate appellees are the developers and sellers of the condominium complex in question. The individual appellees are officers and directors of the developing corporations who, by virtue of such positions, were made the initial officers of the condominium association. The development corporations and the individual appellees were the defendants below.
The appellant filed a multi-count complaint against the appellees urging that certain acts of the corporate and individual appellees were improper under the provisions of Chapter 711, Florida Statutes, F.S.A. Upon the motion of the appellees, several of the counts of the complaint were dismissed. This appeal is from that order. The counts which were dismissed were numbers 1, 5, 6 and 7. It will be necessary to consider the sufficiency of these counts separately.
Count 1 sought declaratory relief against the corporate and individual defendants. It alleged that the defendants had entered into a scheme or plan whereby the corporation postponed the payment of pro-rata assessments for a 120 day period so that the corporations were relieved of the pro-rata assessments on unsold apartment units. As a substitute for the monies which would have been collected from the apartment units pro-rata, the corporate defendants substituted an assessment against each new owner equal to 1% of the purchase price. The appellant attached the corporate agreement and the form of the deed used so that the court was presented with a question of whether or not the defendants had breached their fiduciary or legal obligations to the plaintiff corporation by carrying out this plan to relieve themselves of the pro-rata assessment. The trial court dismissed count 1 of the complaint, and the appellees contend here (1) that there was nothing illegal or improper in their actions and (2) that it is apparent from the complaint that the actions were agreed to by the individual condominium purchasers so that no cause of action could accrue to the association. We do not pass upon this argument addressed to the merits because we think that under the holding in Rosenhouse v. 1950 Spring Term Grand Jury, in and for Dade County, Fla. 1952, 56 So.2d 445, and the many cases following that holding the appellant was entitled to a declaration of its rights upon the question presented. The order dismissing the count is not a sufficient declaration upon the question involved because the dismissal is ambiguous and will not be a part of the judgment. We do not imply by this decision upon count I that the court would have been correct or incorrect had it accepted appellees' argument. We point out, however, that the rights of the association may be different in character and extent from that of the individual condominium purchasers. See Point East Management Corporation v. Point East One Condominium Corporation, Inc., Fla. 1973, 282 So.2d 628.
Count 5 of the complaint was also dismissed. It alleged that the individual defendants occupied fiduciary relationships with the condominium association as its officers, and that they breached that fiduciary relationship by failing to act in good faith in the purchase of certain insurance. The order dismissing this count was proper under the principles stated in Fountainview Association, Inc., No. Four v. Bell, Fla. App. 1967, 203 So.2d 657.
*720 Counts 6 and 7 of the complaint were dismissed as to the individual defendants but the defendants' motion directed to these two counts was denied as to the corporate defendants. This dismissed count sought recovery for the sale by the corporate defendants of certain areas which the complaint referred to as "common areas." It was alleged that it was illegal to sell rights as to these areas. The trial court properly dismissed the individual defendants from this count because it contained no basis for holding these corporate officers liable for the acts of the corporation.
Accordingly, we hold that the trial court correctly dismissed count 5 and correctly dismissed counts 6 and 7 as to the individual defendants but erred in the dismissal of count 1. The order appealed is affirmed in part and reversed in part and remanded for further proceedings, in accordance with the views expressed.
Affirmed in part, reversed in part and remanded.


                                                      Electronically Filed
                                                      Supreme Court
                                                      SCAD-16-0000218
                                                      18-OCT-2016
                                                      10:30 AM

                          SCAD-16-0000218

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                  OFFICE OF DISCIPLINARY COUNSEL,
                            Petitioner,

                                vs.

                      ANTHONY P. LOCRICCHIO,
                            Respondent.

                        ORIGINAL PROCEEDING
            (ODC CASE NOS. 13-066-9136 and 14-040-9183)

                        ORDER OF DISBARMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

           Upon a thorough de novo review of the March 23, 2016

report filed by the Disciplinary Board of the Supreme Court of

the State of Hawai#i, the record, and the briefs and exhibits

appended thereto, submitted by Respondent Locricchio and the

Office of Disciplinary Counsel (ODC), we find and conclude the

following based upon clear and convincing evidence contained in

the record.

           The Hearing Officer in this matter made more than

reasonable accommodations for Respondent Locricchio regarding the

disciplinary hearing, and Respondent Locricchio had adequate
notice of the date and time of the hearing.   The Hearing Officer

was justified in convening the hearing, declaring Locricchio in

default, and entering evidence into the record.

          In ODC Case No. 13-066-9136, we further conclude that

when, on June 4, 2010 and June 24, 2010, Respondent Locricchio

wrote to his client and stated in pertinent part he was

transferring the funds in question to a Special Client Trust

Account on the advice of ODC, and when he wrote to opposing

counsel on August 26, 2010 and made similar statements, he

misrepresented the truth, in violation of Rules 4.1(a) and 8.4(c)

of the Hawai#i Rules of Professional Conduct (HRPC) (1994).    We

conclude Respondent Locricchio repeatedly violated the United

States Bankruptcy Court’s July 13, 2010 and November 2, 2010

orders, and misappropriated funds, when he made payments from the

Special Client Trust Account by executing checks in 2010 (dated

July 24, August 25, November 3, November 11, December 2,

December 12, December 15, and December 22), in 2011 (dated

January 24, January 27, February 28, March 1, March 15, March 29,

May 11, May 12, June 22, June 29, July 5, July 6, August 22,

August 25, September 4, September 8, September 12, September 16,

October 11, October 24, October 26, October 30, November 2,

November 9, November 10, November 21, and December 21), and in

2012 (dated January 3, February 7, March 15, May 23, May 27,

                                2
July 12, August 13 and August 15), each check constituting a

violation of HRPC Rules 1.15(c), 1.15(f)(4), 3.4(e) and 8.4(c).

When, on October 18, 2010, Respondent Locricchio did not appear

at the hearing on the opposing party’s motion for an order to

show cause, Respondent Locricchio had not sought, or obtained,

leave to withdraw as counsel, as required under by the rules of

the Bankruptcy Court and, by failing to appear or to properly

withdraw, violated HRPC Rules 1.16(d) and 3.4(e).      When, on

December 2, 2010, Respondent Locricchio failed to transfer the

funds in the Special Client Trust Account to the United States

District Court Registry, he violated 28 U.S.C. § 1335, thereby

violating HRPC Rule 3.4(e).   Respondent Locricchio, by failing to

timely assume the leases or to obtain an extension for doing so,

violated HRPC Rules 1.1 and 1.3.       We further conclude, by clear

and convincing evidence, that Respondent Locricchio’s cash

withdrawals from the Special Client Trust Account on June 29,

July 5, and July 6, 2011, and his issuance of Special Client

Trust Account checks made payable to his wife, on July 24, 2010,

May 12, 2011, September 8, 2011, September 16, 2011, December 2,

2011, and May 23, 2012, each represent a separate violation of

HRPC Rule 1.15(e).   When Respondent Locricchio stated, on

December 2, 2010 in his interpleader complaint filed with the

United States District Court for the District of Hawai#i, that he

was transferring the Slemons Hawai#i funds from the DIP client

                                   3
trust account to the Special Client Trust Account on the advice

of ODC, he made a material misrepresentation of fact to the court

in violation of HRPC Rules 3.3(a)(1) and 8.4(c).    When, in

Respondent Locricchio’s September 12, 2012 motion in the

interpleader action, he stated he had contacted ODC for advice

with regards to the funds, he again made material

misrepresentations of fact, again violating HRPC Rules 3.3(a)(1)

and 8.4(c).   By making his wife, who was not an attorney, a

signatory to the Special Client Trust Account (evidenced by her

execution of the November 22, 2009 check for $80,300.00 and the

October 24, 2011 check for $455.00),   Respondent Locricchio

violated HRPC Rule 1.15(e).   By depositing third-party funds into

the Special Client Trust Account, on July 6, 2011, Respondent

Locricchio violated HRPC Rule 1.15(c).

          In ODC Case No. 14-040-9183, Respondent Locricchio’s

June 22, 2010 verified complaint, and the ten subsequent motions

for temporary restraining orders, all found by the United States

District Court to be frivolous filings, each represent a separate

violation of HRPC Rule 3.1.   Respondent Locricchio’s October 29,

2010 amended complaint violated the June 25, 2010 order of the

United States District Court for the District of Hawai#i and Rule

8(a) of the Federal Rules of Civil Procedure, thereby violating

HRPC Rule 3.4(e).

          In aggravation, we find Respondent Locricchio committed

                                 4
multiple offenses, engaged in bad faith obstruction of the

disciplinary proceedings by repeatedly seeking to delay the

proceedings, filing unauthorized and unwarranted motions, and

failing to appear at the August 5, 2015 disciplinary hearing,

refuses to acknowledge the wrongful nature of his conduct, has

substantial experience in the practice of law, is indifferent to

making restitution, engaged in a pattern of misconduct, and

exhibited a dishonest or selfish motive in his disbursement of

more than $80,000.00 in disputed funds, including more than

$64,000.00 to himself and his wife.

          In light of the record and the above, disbarment is

warranted.   We further concur with the Disciplinary Board that,

in light of the evidence in the record, it is advisable

Respondent Locricchio be required to successfully complete the

Hawai#i bar exam as a precondition of any subsequent application

for reinstatement to practice.    Therefore,

          IT IS HEREBY ORDERED that Respondent Anthony P.

Locricchio is disbarred from the practice of law in this

jurisdiction, effective 30 days after the date of entry of this

order, pursuant to Rule 2.16(c) of the Rules of the Supreme Court

of the State of Hawai#i (RSCH).

          IT IS FURTHER ORDERED that Respondent Locricchio shall,

in accordance with RSCH Rule 2.16(d), file with this court,

within 10 days after the effective date of his disbarment, an

                                  5
affidavit showing compliance with RSCH Rule 2.16(d) and this

order.

          IT IS FURTHER ORDERED that, as a condition of any

future reinstatement of his license to practice law in this

jurisdiction, in addition to any other requirement imposed by

RSCH Rule 2.17, Respondent Locricchio shall take and pass the

Hawai#i bar examination, and shall submit proof of the foregoing

appended to any petition for reinstatement.

          IT IS FURTHER ORDERED that Respondent Locricchio shall

pay all costs of these proceedings as approved upon the timely

submission of a bill of costs and an opportunity to respond

thereto, as prescribed by RSCH Rule 2.3(c).

          IT IS FINALLY ORDERED that Respondent Locricchio’s

renewed motion for oral argument is denied.

          DATED: Honolulu, Hawai#i, October 18, 2016.

                                    /s/ Mark E. Recktenwald

                                    /s/ Paula A. Nakayama

                                    /s/ Sabrina S. McKenna

                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson

                                6


314 F.Supp.2d 189 (2003)
FRAGRANCE EXPRESS DOT COM, INC., f/k/a Growth Industries, Inc., Plaintiff,
v.
STANDARD & POOR'S CORP., Defendant.
No. 01 Civ. 358(GEL).
United States District Court, S.D. New York.
August 22, 2003.
Leo W. Desmond, West Palm Beach, FL, and Brian P. Murray, Rabin Murray & Frank, LLP, New York City, for Plaintiff.
Saul B. Shapiro, and Clare F. Saperstein, Patterson, Belknap, Webb & Tyler, LLP, New York City, and Barbara E. Schlain, the McGraw-Hill Companies, Inc. (of counsel), for Defendant.

OPINION AND ORDER
LYNCH, District Judge.
This case concerns the effect of the assignment of a duplicate CUSIP number to stock in plaintiff's company. A CUSIP number is a unique nine-digit number assigned to publicly-traded securities to identify securities for the clearing and settlement of trades. The defendant, which administers the CUSIP system, mistakenly assigned a pre-existing CUSIP number to plaintiff's securities, and plaintiff alleges that this error, which it discovered two *190 months after public trading in its stock had commenced, caused its stock to lose value irreparably. The defendant moves for summary judgment, proposing that even if its negligence is assumed for purposes of argument, the plaintiff has failed to present any evidence that the decline in plaintiff's stock price is attributable to the misassigned CUSIP number. For the reasons that follow, the defendant's motion to dismiss the Complaint will be granted.

BACKGROUND
Except where otherwise indicated, the following facts are undisputed. The plaintiff, Fragrance Express Dot Com, Inc. ("Fragrance Express"), was organized in the late 1990s to engage in the on-line sale of perfumes. The predecessor of the present Fragrance Express was called Fragrance Express, Inc., a Florida company ("FEF"). On March 24, 1998, FEF consummated a reverse merger with Growth Industries, Inc., a Nevada corporation that had been approved by NASD to publicly trade its shares ("Growth"). As a result of that merger, FEF became a wholly-owned subsidiary of Growth.
About a week before the merger, Growth had changed its name from Frozen Assets, Inc. As a result of the name change, Growth applied to the CUSIP Service Bureau[1] for a new CUSIP number to identify the stock of the newly-named company. (Compl.ś 9.) On March 18, 1998, the CUSIP Service Bureau told Growth that its new CUSIP number was XXXXXXXXX.
After consummating the merger with FEF, trading in Growth shares began. On March 30, 1998, the first day a trade occurred, 1,000 shares of Growth stock were sold with a starting price of $3.675 per share. (Pl.Mem.7.) By the end of the day, the stock price had dropped to $1. (Def.Mem.11.) By May 27, 1998, the share price had declined to less than $0.13; it never substantially recovered. (Pl.Mem.21.)
In late May, the plaintiff learned that the CUSIP number assigned to Growth was not a new and unique number, as it was supposed to be. (Compl.ś 17.) Rather, the CUSIP Service Bureau had mistakenly assigned Growth the number already issued to an unrelated, defunct Nevada company which had also been called Growth Industries, Inc. ("Old Growth"). On June 12, 1998, Growth publicly disclosed that it had been issued a duplicate CUSIP number. (Pl. Mem. 21; Declaration of Clare F. Saperstein, dated Feb. 28, 2003 ("Saperstein Decl."), Ex. 29.) On June 22, 1998, the CUSIP Service Bureau assigned a new CUSIP number to Growth, which by then had changed its name to Fragrance Express, Inc., a Nevada corporation ("FEN"). By March 18, 1999, the plaintiff company again changed its name to Fragrance Express Dot Com, Inc. The price of stock in the plaintiff company never rose above $1 per share after the first day of trading.
The significance of the duplicate CUSIP number lies in the mechanics of a stock trade. The Depository Trust Company ("DTC") is a national clearinghouse for securities traded by brokerage firms on the public markets. (Def. 56.1 Stmt. ś 83.) Stock certificates in DTC's possession reflect shares held in brokerage firm accounts, identified by CUSIP number. DTC maintains records of each brokerage firm's position in a particular security, and the brokerage firm keeps records of the trading activity of those shares.
The parties agree that by May 29, 1998, DTC had 2,902,200 shares on deposit with *191 CUSIP number XXXXXXXXX. (Pl. Mem. 19; Declaration of Leo W. Desmond, executed March 28, 2003 ("Desmond Decl."), Ex. 6.) Of that number, at least 92,100 shares (about 3%) were shares of defunct Old Growth stock bearing the same CUSIP number as the Growth shares. (Pl. 56.1 Stmt. ś 3, Def. Rep. 56.1 Stmt. ś 3.) The parties agree that during the time Growth shares were on the market, a seller called RAF Financial Corporation ("RAF") sold 5,700 shares of Old Growth stock held at DTC, even though Old Growth was a defunct company. (Pl. 56.1 Stmt. ś 5.) The first sale of Old Growth shares occurred on April 13, 1998, and subsequent sales occurred on April 15, 1998, and April 22, 1998. (Def. 56.1 Stmt. ś 89.) These sales were apparently facilitated by the posting of Growth shares to the market, since those shares had the same company name and CUSIP number.
While the parties do not dispute these facts, they do dispute the effect of the presence in the DTC inventory of defunct Old Growth shares bearing the same CUSIP number as newly-posted Growth shares. In the Complaint, the plaintiff alleged that Old Growth shareholders believed that their stock had been posted to trade again since stock with the identical CUSIP number had been posted, and proceeded to flood the market with worthless Old Growth stock, thus driving down the price of Growth shares. (Compl.ś 17.) After discovery revealed the extremely small number of Old Growth shares actually traded, the plaintiff largely abandoned this theory. In opposition to the summary judgment motion, the plaintiff argues instead that Old Growth shares were "commingled" with Growth shares in DTC's inventory, resulting in rumors within the investment community that Growth shares were diluted. The plaintiff claims that investor confusion resulting from two companies using the same CUSIP number caused the irreparable collapse of the Growth stock price. (Pl.Mem.7.)
The defendant offers evidence, and the plaintiff does not dispute, that a total of 2,368,512 trades of stock with CUSIP number XXXXXXXXX were made on the public markets during the time Growth stock was posted to the market. (Def. 56.1 Stmt. ś 95.) Of those trades, the parties agree that 5,700 â   less than two-tenths of one per cent â   involved shares of Old Growth stock. (Def. Mem. 14; Pl. 56.1 Stmt. ś 23). The plaintiff cites no evidence to contradict the conclusion that the vast majority of shares traded were Growth shares.[2] Long before the first Old Growth shares were traded on April 13, 1998, the price of Growth shares had dropped below $1 per share. (Def.Mem.15.) The plaintiff now contends that the damage to Growth was not in the number of Old Growth shares traded, but rather in the existence of the Old Growth stock in the DTC inventory. Plaintiff argues that the presence of Old Growth stock led to rumors in the financial community that inhibited marketmakers from buying any Growth stock at all, and made it impossible for Growth to make appointments with retail brokers to promote the stock. (Pl.Mem.7.)

DISCUSSION

A. Standard for Summary Judgment

Summary judgment is appropriate when there are no genuine issues of material fact in dispute and when, viewing the evidence *192 in a light most favorable to the nonmoving party, no reasonable trier of fact could disagree as to the outcome of the case. See Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.2000). While all ambiguities in the evidentiary record must be resolved in favor of the nonmoving party, "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). In addition, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). Summary judgment is then appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
To establish a genuine issue of material fact, the party opposing summary judgment "`must produce specific facts indicating' that a genuine factual issue exists." Scotto, 143 F.3d at 114 (quoting Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
Moreover, if there is an absence of evidence on an essential element of the claim, and if at trial the nonmoving party would have the burden of proof of that essential element, then summary judgment is warranted. This is because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

B. Application To This Case

The plaintiff claims that the defendant's negligence in assigning a duplicate CUSIP number caused plaintiff's stock price to drop. To prevail on a claim of negligence, a "plaintiff must show that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the plaintiff suffered damages as a proximate result of that breach." King v. Crossland Savings Bank, 111 F.3d 251, 259 (2d Cir.1997) (emphasis added). If, after discovery, the plaintiff fails to demonstrate evidence in its favor on any one of the above elements, then summary judgment must be granted to the defendant, because the plaintiff must prove each of the elements in order to prevail at trial.
Courts rarely grant summary judgment in negligence cases, because the reasonableness of a defendant's conduct is generally a factual question to be determined by a jury. Id. Here, however, the defendant does not base its motion on a claim that it was not negligent, but rather on lack of proof of causation. Where a plaintiff fails to present a sufficient question of fact as to whether alleged negligence caused loss, summary judgment will be awarded. See Ansam Assoc., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446-447 (2d Cir.1985) (affirming dismissal of negligence claim on summary judgment where plaintiff offered *193 only conjecture in support of theory of causation). The defendant argues that even conceding (for purposes of this motion) that it owed plaintiff a duty and breached that duty by assigning a duplicate CUSIP number, the Complaint should still be dismissed because the plaintiff has failed to show that the duplicate CUSIP number caused the decline in value of plaintiff's stock. Because the plaintiff has failed to present any evidence from which a reasonable jury could find that the duplicate CUSIP number caused plaintiff's stock price to decline, summary judgment will be granted to the defendant.

1. Trades in Old Growth Shares

Plaintiff does not dispute that out of a total of 2,368,512 shares of stock traded bearing the CUSIP XXXXXXXXX, only 5,700 were shares of Old Growth. Rather than take issue with the actual trades that occurred, the plaintiff offers a confusing and irrelevant description of the shares on deposit at the DTC, and how that number may have fluctuated between February and May 1998. Nevertheless, it is undisputed that of the shares actually traded, only a very small fraction were Old Growth shares. Moreover, by the time the first Old Growth shares were traded on April 13, 1998, the price of Growth shares had already declined to $1 per share, negating any inference that a flood of Old Growth shares was responsible for the price drop. The plaintiff's original theory of causation is therefore defeated, because the market was clearly not flooded with Old Growth shares sufficient to drive down the price of Growth shares.[3]

2. Rumors of Diluted Growth Stock

Plaintiff offers no evidence to support its alternative theory, relied on in its summary judgment papers, that market rumors of the existence of additional, undisclosed stock caused Growth's stock price to plummet. Plaintiff speculates that the commingling of Growth and Old Growth stock in DTC's inventory was the source of speculation in the market that there existed more Growth stock for sale than the company had disclosed, and that as a result marketmakers were reluctant to invest in the stock or meet with Growth promoters. (Pl.Mem.20.) However, plaintiff offers no testimony of any independent market participant or observer to support this assertion. In support of the theory that rumors of diluted Growth stock permeated the market, the plaintiff provides only hearsay testimony by interested parties. Ken Barker, a Growth principal, testified at his deposition that marketmakers were concerned about the existence of undisclosed shares and acted accordingly (Deposition Transcript of Ken Barker, dated Oct. 10, 2002, at 95, 121, 151, Ex. 7 to Desmond Decl.), but no first-hand testimony of any marketmaker is offered in support of this assertion. The plaintiff also offers the affidavit of a Growth promoter who avers that there were rumors of millions of undisclosed trades (Affidavit of Kevin Murphy, dated March 27, 2003, śś 5-9, Ex. 9 to Desmond Decl.), but again there is no other evidence that the rumors existed or any evidence whatever that such rumors caused the lack of interest in Growth stock.[4] Barker's and Murphy's *194 testimony as to why third parties did not purchase Growth stock are at best hearsay, and at worst sheer speculation. If the rumors did exist and have such effect, affidavits or depositions of the marketmakers or other potential investors, some of whom are named in the Barker deposition excerpts submitted upon summary judgment, could have provided the requisite evidence. As it stands, there is no evidence of a causal connection between the misassigned CUSIP number, any rumors that may have circulated, and any actions taken or not taken by brokers or potential investors.
The parties agree that as of May 29, 1998, DTC held 2,902,200 shares with CUSIP number XXXXXXXXX, at least 92,100 of which were Old Growth shares. (Pl. 56.1 Stmt. ś 17; Def. Reply 56.1 Stmt. ś 17.) However, the parties dispute the exact number of Old Growth and Growth shares on deposit at DTC, and offer conflicting calculations of the number of such shares on deposit.[5] Plaintiff belabors this point in its brief, apparently with an eye to demonstrating the extent of commingling of Growth and Old Growth shares. However, since plaintiff has failed to produce any evidence of damaging rumors, the extent of commingling is irrelevant. According to plaintiff's own theory of causation the question is not the extent of any commingling, but rather who knew or suspected that there was a possible dilution of Growth shares. The plaintiff's rambling catalogue of stock sales seems intended to create the impression of disputed material facts, when in reality the essential facts are uncontested. While there may be confusion in plaintiff's papers, there does not appear to have been confusion in the market, because there is no evidence that any market actor knew or suspected that there was potentially more stock for sale than Growth had disclosed and took action based on such suspicion.
In contrast to the plaintiff's entirely speculative theory of causation, defendant presents uncontested facts that provide a convincing explanation for the decline in plaintiff's stock price, rooted in the underlying weakness of plaintiff's venture. Defendant's argument on causation can be considered on summary judgment, because "a convincing presentation by the moving party" cannot be overcome by "the mere possibility that a factual dispute may exist." Ansam, 760 F.2d at 447 (emphasis in original).
Even putting aside the defendant's extended discussion of the checkered past of plaintiff's principals and financial backers, given Growth's high-risk financing arrangements and the questionable prospects for on-line fragrance sales at a minimum, there is no reason to assume that the plaintiff company was destined for success, or that the market incorrectly valued the stock by assigning it a lower price than plaintiff's backers had hoped for. As already noted, plaintiff's share price had already declined precipitously before any confusion about the CUSIP number could have ensued. Moreover, the price did not *195 recover after any possible confusion had been cured. As the defendant argues, it is an elementary principal of economics that markets respond to information. If were true that market rumors about the existence of additional, undisclosed shares injured Growth's stock price, then the market should have corrected the price once more accurate information became available. No such market correction occurred, and Growth's stock price did not recover even after the company publicly recognized the error and received a new and unique CUSIP number.
Like many start-up companies, the plaintiff failed to attract investors and did not live up to its principals' expectations after it began publicly trading shares. Plaintiff cannot recoup its losses by capitalizing on the misassignment of the CUSIP number, because there is no evidence that the CUSIP number had anything to do with the market's lack of interest in plaintiff's venture. Summary judgment will be awarded to defendant, and the Complaint will be dismissed, because no reasonable jury could find for the plaintiff on its claim of negligence when the plaintiff has failed to produce any evidence to support its theory of loss causation.

CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted, and the Complaint is dismissed.
SO ORDERED.
NOTES
[1]  The CUSIP Service Bureau is operated by Standard & Poor's, a division of The McGraw-Hill Companies, Inc., incorrectly sued here as Standard & Poor's Corp., and holds the exclusive license to issue CUSIP numbers.
[2]  The defendant's expert report states that after accounting for the 3,500 shares that RAF repurchased, only 2,200 Old Growth shares were net sold into the market, constituting about 2% of a total of 104,800 shares with CUSIP number XXXXXXXXX net sold. (Def. Mem. 14, citing Ex. 11 to Amended Expert Report of Marcia Kramer Mayer, dated Nov. 26, 2002, Ex. 3 to Saperstein Decl.) Whether net or gross figures are considered, the evidence demonstrates minimal sale of Old Growth stock.
[3]  The plaintiff's own expert conceded as much at his deposition, when he agreed that the available evidence demonstrated that only 2,200 Old Growth shares had been net sold, and proceeded to state that the only way the Growth stock price could have been affected by the Old Growth shares was if the market "realization [grew] that there are these shares out there." (Deposition Transcript of Michael A. Marek, dated December 4, 2002 at 35, Ex. 53 to Saperstein Decl.)
[4]  Plaintiff's expert, Marek, testified that he was aware of no evidence, beyond Barker's deposition testimony, that any market participants were aware of the duplicate CUSIP number prior to the company's public disclosure on June 12, 1998. (Id. at 36.)
[5]  The plaintiff suggests in its Rule 56.1 Statement that the DTC may have held "more than one million [Old Growth] shares" (while failing to provide any evidence in support of this assertion) (Pl. 56.1 Stmt. ś 13), and states in its brief that there may have been as many as 163,000 Old Growth shares on deposit at DTC by May 29, 1998. (Pl. Mem. at 19-20.) However, even assuming that this is correct (which the defendant disputes), it is not material. The plaintiff does not allege that more than 5,700 trades of Old Growth stock actually occurred (Pl. 56.1 Stmt. ś 23), and as explained below, the amount of commingled stock in the DTC inventory is irrelevant absent evidence that the market suspected a dilution of Growth stock.


462 S.E.2d 623 (1995)
265 Ga. 776
ROLAND
v.
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
No. S95G0639.
Supreme Court of Georgia.
October 23, 1995.
*624 E. Paul Sabiston, Sabiston & Smith, Duard R. McDonald, Marietta, for Roland.
Dennis D. Watson, Watson & Dana, LaFayette, George W. Weaver, Weaver & Weaver, Jasper, for Georgia Farm Bureau Mutual Insurance Company.
THOMPSON, Justice.
We granted certiorari to the Court of Appeals to determine whether a homeowner's insurance policy issued by appellee Georgia Farm Bureau Mutual Insurance Company (GFB) required Frances Roland, a named insured, to live at the "residence premises" at the time of the loss in order to be compensated for her claim. We conclude that it did not reverse, in part, the judgment of the Court of Appeals in Ga. Farm Bureau Mut. Ins. Co. v. Roland, 215 Ga.App. 834, 452 S.E.2d 548 (1994).
Frances and Charles Roland, wife and husband, were both named insureds under the policy which covered their marital home against fire loss from June 13, 1990 to June 13, 1991. Both had resided at the insured residence until October 1990, when the couple separated and Frances moved out of state. Charles continued to occupy the residence. The house was destroyed by fire on March 1, 1991. On March 12, 1991, the Rolands' marriage was terminated pursuant to the entry of a final judgment of divorce.
The policy contains a "special provision" stating that "the residence premises is the only premises where the named insured or spouse maintains a residence other than business or farm properties." GFB denied Frances' claim for coverage on the ground that the policy required her, as a named insured, to live at the insured premises at all times in order for coverage to be effective.[1]
The Rolands brought separate suits for payment of their claims, which were joined by order of the trial court. GFB unsuccessfully moved for summary judgment with respect to Frances' claim on the basis that coverage was voided because she did not reside in the house at the time of the loss. At trial, the court directed a verdict in favor of Frances on the issue of liability, and denied GFB's motion for directed verdict on the issue of bad faith penalties and attorney fees. The jury returned a verdict for both Frances and Charles for the insured value of the house and its contents. Both plaintiffs were awarded attorney fees, and a bad faith penalty for refusal to pay Frances' claim was assessed against GFB.
The Court of Appeals reversed, finding that GFB was entitled as a matter of law to refuse coverage to Frances based on her failure to reside at the insured premises. It also reversed the denial of GFB's motion for directed verdict on the issue of bad faith attorney fees.[2]
1. When a contract is unambiguous and capable of only one reasonable interpretation, it is a matter for the court. OCGA § 13-2-1; Carsello v. Touchton, 231 Ga. 878(1), 204 S.E.2d 589 (1974). An unambiguous contract is properly subject to summary disposition. Castellana v. Conyers Toyota, 200 Ga.App. 161, 407 S.E.2d 64 (1991). GFB acknowledges that the loss occurred during the term of the policy and that the Roland home is the "residence premises" described in the declarations page. It submits, however, *625 that coverage as to Frances terminated when she relocated to Florida.
The Court of Appeals agreed, basing its decision on Georgia Farm Bureau Mutual Insurance Company v. Kephart, 211 Ga.App. 423, 439 S.E.2d 682 (1993). Although the identical special provision was at issue in Kephart, the case is factually dissimilar and does not control. Mrs. Kephart and her husband had divorced one month prior to a fire which damaged the insured premises. At the time of the loss, Mrs. Kephart was the sole named insured under the policy. Coverage was properly denied under the special provision requiring residency because the named insured (Mrs. Kephart) no longer resided in the house, and although Mr. Kephart continued to live there, he was no longer her spouse at the time of the loss. The plain language of the GFB policy unambiguously requires that "the named insured or spouse" live at the insured premises in order to maintain coverage under the policy.
Charles Roland was both a named insured and the spouse of a named insured at the time of the loss. Based on the policy language, Frances could have reasonably anticipated that her coverage continued while she or Charles lived in the house during the pendency of their marriage.[3] A contract of insurance should be strictly construed against the insurer and read in favor of coverage in accordance with the reasonable expectations of the insured. Cincinnati Insurance Company v. Davis, 153 Ga.App. 291, 265 S.E.2d 102 (1980). The contract at issue unambiguously covered Frances' claim. To rule otherwise would place an untenable and inequitable burden on a named insured who has an equitable and insurable interest in the marital property, has paid premiums to insure that property, but finds that coverage voided simply because he or she elects to live apart from a spouse for a period of time due to the uncertainties of a precarious marriage. The trial court was correct in directing a verdict as to liability in favor of Frances.
2. We agree that the trial court erred in failing to direct a verdict in favor of GFB with respect to Frances' claim for the imposition of bad faith penalties and attorney fees under OCGA § 33-4-6. GFB's refusal to pay was neither frivolous nor unfounded, but was based on a doubtful question of law. See generally Interstate Life, etc., Co. v. Williamson, 220 Ga. 323, 138 S.E.2d 668 (1964). Where, as here, the insurer has reasonable grounds to contest the claim, it cannot be held liable for a penalty based on bad faith refusal to pay or for attorney fees. Rice v. State Farm Fire, etc., Ins. Co., 208 Ga.App. 166(1), 430 S.E.2d 75 (1993).
Judgment affirmed in part and reversed in part.
All the Justices concur.
NOTES
[1]  Charles' claim was also denied, but for other reasons not before this Court.
[2]  The judgment as to Charles Roland was also reversed by the Court of Appeals. His application for writ of certiorari was denied by this Court.
[3]  Because the policy unambiguously provides coverage under the circumstances, we do not reach the question of whether the special residency provision deviates from the Standard Fire Policy prescribed by the Insurance Commissioner of Georgia pursuant to OCGA § 33-32-1. Subsection (a) mandates that fire insurance policies contain "language at least as favorable to the insured as the applicable portions of the standard fire policy...." See generally Fireman's Fund v. Dean, 212 Ga.App. 262, 441 S.E.2d 436 (1994) (fraud provision of fire insurance policy must conform with the minimum coverage provided in the standard fire policy).

The Standard Fire Policy prescribed by the Commissioner, as it relates to "conditions suspending or restricting insurance," provides: "Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased ...; or (b) while a building ... is vacant or unoccupied beyond a period of sixty consecutive days...." Rules of Comptroller General, Insurance Department, Property Insurance Regulations, Chapter 120-2-19-.01, p. 283.


537 U.S. 939
VILLELA-LUNAv.UNITED STATES.
No. 02-6072.
Supreme Court of United States.
October 7, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.

2
C. A. 10th Cir. Certiorari denied. Reported below: 41 Fed. Appx. 360.