129 N.Y.S. 414 | N.Y. App. Div. | 1911
The plaintiff moves for a new trial upon exceptions ordered to be heard in the first instance at the Appellate Division. The cause has been twice tried. On the first trial the plaintiff had a verdict, but the judgment was reversed on the ground that the. verdict was against the evidence. On the second trial the complaint was dismissed upon the plaintiff’s proofs, the court apparently feeling itself constrained to take this action by some of the reasons given for reversing the former judgment. (135 App. Div. 549.) Although there has been no change in the pleadings, the plaintiff sought on the' second trial to proceed upon a somewhat different theory from that upon which he had proceeded on the first trial, and hence somewhat different questions were involved. On the former appeal- we were dealing' only .with the case as then presented, and whatever was said, however strongly it was .put, was said only with reference to the record then before us. The action is by a stock speculator against his brokers for damages resulting from what is claimed to be the unwarrantable action of the defendants in closing out plaintiff’s transactions without notice to him or consent by him. The complaint contains all the essential allegations for such a cause of action, and in addition alleges a special agreement between plaintiff and defendants that the latter would not execute any orders for .the purchase and sale of goods beyond an amount that they would undertake to carry for plaintiff without calling upon him for any margin beyond what he had deposited with them. On the former trial the plaintiff relied upon proof of this special agreement to-the extent of successfully objecting to the introduction of any evidence tending to justify defendants in closing out his transactions without his consent. It was because we considered that the evidence did not justify a- finding that this special agreement had been made that the judgment was reversed. On the second trial the plaintiff sought to recover on the other allegations of the complaint without attempting to prove the special. agreement. This the court declined to permit, holding that plaintiff could not recover. except upon first prov
The exceptions must be. sustained and. a new trial granted, with costs to abide the event.
Ingraham, P. J., McLaughlin,- Miller and Dowling, JJ., concurred.
Exceptions sustained and new trial granted, with costs to abide the event. Settle order on notice.