Colt v. Owens

15 Jones & S. 430

• Court: The Superior Court of New York City
• Decided: June 13, 1881
• Status: Published

Opinion

By the Court.—Sedgwick, Ch. J.

The ruling of' the court is sustained by Baker v. Drake (53 N. Y. 311). The space of thirty days, within which the1 plaintiff might have regained the stock in the market' without loss, is the reasonable time within which he should have acted. It is not meant to say that a less time would not be reasonable.

The learned counsel for appellant argues from the fact that the defendant had security, in the shape of a guaranty from a third person, that certain distinctions' pointed out in Baker v. Drake recognize that its decision does not affect a case like the present. In that case, it was said that ‘1 if the stocks had been paid for and owned by the plaintiff different considerations would arise,” and “that where he has paid the purchase-money, it is unreasonable to require him to pay it the second time, and therefore all fluctuations in price should be at the risk of the vendor who refuses to deliver.” There is nothing in this case to show that the withdrawal of the guaranty or the arrangement between the guarani Gr- and the plaintiff, had taken any part of plaintiff’s; means of buying the stock on his own account. After the withdrawal he had the same facilities for buying-that he was possessed of before it was given. It was proven that he paid nothing for the guaranty and he-was liable to pay nothing. I am of opinion that the; decision of Baker v. Drake should be applied here,

Judgment and order affirmed, with costs.

Speir and Freedman, JJ., concurred.