Collins v. Clark, 54 Barb. 184

Collins v. Clark

54 Barb. 184 | N.Y. Sup. Ct. | 1869

By the Court,

Clerke, P. J.

This action is brought to compel the defendants to account for and pay to the plaintiff certain profits, which they, as stock brokers, realized on behalf of the plaintiff in the purchase and sale of certain railroad stocks, together with money deposited by the plaintiff as a security against loss by them, and also for loss or damage incurred by the plaintiff in consequence of the neglect and refusal of the defendants, to sell 600 ■shares of the Hudson River Railroad Company which, in addition to the stock first referred to, they had purchased for the plaintiff, and which he alleges,.expressly, he ordered them to sell on the 9th of April, 1864.

In the answer, the defendants admit that they had purchased and sold for the plaintiff the several parcels of stocks mentioned in the complaint, in addition to the purchase of 600 shares of Hudson River Railroad stock, and they deny that on the 9th of April, 1864, or at any other time, the plaintiff directed them to sell the said 600 shares, whenever they could obtain a certain price for the stock.

This is the principal, if not the only, issue in the ease. The defendants admit, in their account rendered, that the *190several parcels of stock mentioned in the complaint, exclusive of the Hudson, were purchased and sold for the plaintiff at the prices mentioned by him in the complaint. So that, it appears to me, the only disputed question was, whether the plaintiff should be credited, in the account, with the difference between the price at which the 600 shares of Hudson were purchased, and the price which they would have brought, if the defendants had sold them on the 9th of April; and, whether he should be so credited depended upon the truth or falsehood of his allegation that he directed them to sell on that day at from 159J to 160J per share. If he did direct them to sell on that day, and if they could then obtain that price, he was entitled to be credited, as I have already stated; if he did not direct them to sell on that day, they were not liable to be charged with the prices then obtainable, and if the stock subsequently fell, and if the defendants were compelled to sell by reason of the plaintiff’s neglect to keep good his margin, according to his engagement, and if they sold on reasonable notice, they were not to suffer from the consequences.

[New York General Term, June 7, 1869.

'( The referee entirely ignores this issue clearly elicited from the pleadings, and, as I have said, from the nature of the case, the principal, if not the only one in it. Ho judgment can be rendered, until this issue be decided.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

Clerke, Sutherland and Ingraham, Justices.]