SCOTT, J:
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*514ing the special agreement which he alleges. The complaint is somewhat unusual and inartificial in form, but, as has been said, it states a sufficient cause of action exclusive of the special agreement which it alleges. That seems to have been pleaded in anticipation of a defense which it was apprehended defendants might interpose. We think' that plaintiff should have been permitted to prove such of the allegations of his complaint as he was able to prove, even if he could hot prove all, and if what he did prove established a cause of action his complaint should not be dismissed. In such case the allegations unproven could be disregarded. (Spring v. Bowne, 89 Hun, 10; Conaughty v. Nichols, 42 N. Y. 83; Sussdorff v. Schmidt, 55 id. 319; Sullivan v. Dunham, 161 id. 290; Butler Brothers v. Hirzel, 87 App. Div. 462.) We are also of the opinion that plaintiff should have been permitted to go to the jury on his proofs as to the alleged special agreement, even if the court would have deemed it proper, after a verdict for plaintiff, to set it aside. There was certainly more than a scintilla of evidence to support the plaintiff’s contention. It is true that substantially the same evidence was before this court on the former appeal, but there was also much more, some of which served to weaken appreciably the force of that offered by plaintiff. It is suggested by counsel that one of the opinions rendered on the former appeal left it somewhat uncertain what rule of damages should be applied when a broker unwarrantably undertakes to close out a “short” transaction which he has been carrying for his customer. In that opinion a majority of the court did not concur.- The whole subject has since been exhaustively examined by the .presiding justice in an opinion in which he reviewed the leading authorities on the subject in this States (Matter of Mills, 139 App. Div. 54.) It was there pointed out that when, a broker makes a “short’’sale for a customer he impliedly undertakes to continue the short sale for a reasonable time to enable his customer to acquire a profit, provided the customer keeps his broker secured, which it is his corresponding duty to do. As was said in White v. Smith (54 N. Y. 522): “The broker can, however, close the transaction at any time. if the margin, 'upon his demand and notice, is not kept good; and after he has carried the *515stock for a reasonable time, thus affording Iris customer an opportunity to realize his expectations, he may, upon notice, close the transaction with his customer.” In the latter case, however, when the broker elects to close the transaction, for reasons other than a shortage of security,. the notice to the customer of the intention to close it should afford the latter a reasonable opportunity to replace the transaction by a sale through some other agency. An actual clos-. ing out of the transaction by the broker without notice to his customer is equivalent to a closing out upon insufficient notice, and the rights of the parties are the same in the one case as the other. In either case the fault of the broker lies in not affording his customer a reasonable time within which to replace. the transaction elsewhere, and the customer is entitled to recover as damages the profit he would have made if his broker had given him reasonable notice of the intention to close out the transaction, carrying it on meanwhile. The learned justice who presided at the first trial charged the jury upon this subject as follows: “As to the short transaction he (plaintiff) would be entitled to the difference between the price at which the short stock was bought in and the lowest market price of the stock, within a reasonable time after the sale, less the broker’s commission, -unless the closing out of the short transaction is found by you to have been at the plaintiff’s order or with his consent and approval after he had full knowledge of what was done.” This instruction was not objected to by either party at the time it was given, and.in our opinion states succinctly, so as to be comprehended by the average lay juror, the proper rule to be applied in the case of an unauthorized closing out of a short transaction.
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.