Berger v. Rothschild

234 A.D. 198, 254 N.Y.S. 367, 1931 N.Y. App. Div. LEXIS 8328

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1931
• Status: Published

Opinion

Per Curiam.

This case was tried and submitted to the jury upon the theory that defendants had breached alleged agreements made with plaintiff as to the delivery of certain stocks belonging to plaintiff in the possession of L. F. Rothschild & Co.

We reverse the judgment and dismiss the complaint upon the ground that plaintiff failed to show any legal damage suffered by him by reason of the breach of said agreements. The evidence shows that the sale of plaintiff’s stocks on October 29, 1929, was justified for lack of margin, even if the stocks held by L. F. Rothschild & Co. are included as collateral. Even assuming that the sale of stock on October 30, 1929, was not justified on the ground that the stocks then sold were sufficiently margined, it appears beyond question that these stocks would have been properly sold for lack of margin before plaintiff’s return from Europe. Plaintiff, therefore, suffered no legal damage. If this be correct, appellant Ladenburg, Thalmann & Co. is entitled to recover its counterclaim, as there is no dispute as to the amount involved.

The judgment and orders should be reversed on the law, with costs, and judgment directed dismissing the complaint as to all defendants, with costs, and judgment directed against the plaintiff in favor of the defendants comprising the firm of Ladenburg, Thalmann & Co. upon their counterclaim for $18,452.61, with interest from November 1, 1929, and costs.

Young, Kapper, Hagarty, Scudder and Davis, JJ., concur.

Judgment and orders reversed on the law, with costs, and judgment directed dismissing the complaint as to all defendants, with costs; judgment directed against plaintiff in favor of the defendants comprising the firm of Ladenburg, Thalmann & Co. upon their counterclaim for $18,452.61, with interest from November 1, 1929, and costs.