114 N.Y.S. 457 | N.Y. App. Div. | 1909
The facts neither require nor warrant an order so broad and unrestricted as that which has been granted. In the fall of 1905 the plaintiff claims to have purchased of the defendants 100 bonds of the Randolph Macon Coal Company, a corporation organized under the laws of Missouri, of the par value of $1,000 each, and he brings this action to recover the sum of $94,475, the purchase price paid, together with interest thereon, less certain interest received, on the ground that lie was induced to purchase them by fraud, and that upon discovering the fraud he rescinded the contract and tendered back the bonds. The defendants conducted business as bankers and brokers and bought and sold investment securities in the city of New York under the firm name of Mackay & Co., and plaintiff conducted a similar business individually in the city of Paris. The defendants allege in their answer as separate defenses, among other things, that plaintiff did not purchase the bonds for himself, but merely as agent for his customers, and, also that if he did purchase them for himself he sold them without loss before the commencement of the action. The theory of the defense evidently is that as plaintiff was not the purchaser or the real party in interest, he could not rescind the contract. The defendants claim that plaintiff represented to them that he was acting for others, but did not disclose the names of his principals and the ground upon which they applied for an open commission is that they must first ■ examine the plaintiff to ascertain the names of his principals or customers and then examine
It follows that the order should be modified by granting a commission to take the deposition of plaintiff and of Landry on oral interrogatories in the city of Paris, on condition that defendants pay to plaintiff’s attorneys the sum of $600 as indemnity against the reasonable and necessary expenses incurred by plaintiff for counsel fees with respect to the execution of such commission, the amount to be retained for such expenses to be determined .by the court after the execution of the commission, and as so modified affirmed, without, costs.
Ingraham, Clarke, Houghton and Scott, JJ., concurred.
Order modified .as directed in opinion, and as modified affirmed, without costs. Settle order on notice.