110 N.Y.S. 261 | N.Y. App. Term. | 1908
Assuming that defendants in September, 1906, omitted to follow plaintiff’s instructions to sell at 146 the Pennsylvania Railroad stock which they held as brokers for her, the evidence conclusively establishes, both from plaintiff’s own testimony that subsequent payments were made by her for margin and interest and from the accounts and correspondence that passed between them, a complete ratification of defendant’s alleged breach. Under these circumstances, it seems to me unnecessary to dwell upon the question of election, which the defendants raised at the close of plaintiff’s, and again at the close of the entire, case, as it is clear that plaintiff -in no event was efititled to any recovery under the first alleged cause of action.
The issues presented under the second cause of action were purely of fact, and, the jury having found in favor of the plaintiff upon the conflicting, proofs of the parties, no reason exists for disturbing the verdict in this regard. The verdict of the jury being in part unquestionably made up of the sum of $300 fixed by the court as the amount to which plaintiff would be entitled under the first cause of action, that sum will be eliminated, and the judgment reduced to $954.38.
Judgment will be modified accordingly, and, as modified, affirmed, without costs of appeal to either party. All concur.
