Frary v. Herzig

Appellate Terms of the Supreme Court of New York

Frary v. Herzig

123 Misc. 225, 204 N.Y.S. 201, 1924 N.Y. Misc. LEXIS 809

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 10, 1924

StatusPublished

This text of 123 Misc. 225 (Frary v. Herzig) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frary v. Herzig, 123 Misc. 225, 204 N.Y.S. 201, 1924 N.Y. Misc. LEXIS 809 (N.Y. Ct. App. 1924).

Pincite

Opinion

Per Curiam.

Plaintiff sued for $900, which he alleges is the amount of his damage for breach of contract. Defendants, stock[226]*226brokers, agreed to purchase for plaintiff 3,000 shares of a stock. They sent him memoranda of purchases, one for 2,000 shares and the other for 1,000. The first one contained a notation that the stock had been bought from three named individuals, one of whom was named Maltman. The second block of 1,000 shares the defendants stated was bought entirely from Maltman. Plaintiff paid brokerage commissions amounting to $60 and advanced the necessary margin. He later called for the stock, and at his request it was delivered to another brokerage firm, which subsequently, in accordance with plaintiff’s orders, sold it. Plaintiff’s loss on the sale was $900. Plaintiff produced Maltman, the alleged original owner of some of these shares, who testified that he had never owned any shares of this company. He was confirmed by the testimony of an employee.

Upon this record plaintiff rested, and defendants also rested, and moved for a dismissal of the complaint. A judgment has been entered for $900. The theory of plaintiff’s cause of action, as outlined in his brief, is that the defendants have sold him their own stock. If this had been proved, he would have been entitled to rescind, were he in a position to do so; but the evidence which he has offered falls far short of proving any such cause of action, and it further appears that he is unable to restore the stock. Upon what theory the damages have been awarded by the learned trial court does not appear.

It cannot be sustained by the cause of action suggested in the brief of respondent, and the judgment must be reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, McCook and Crain, JJ.

Judgment reversed and complaint dismissed.

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Per Curiam.

Plaintiff sued for $900, which he alleges is the amount of his damage for breach of contract. Defendants, stock[226]*226brokers, agreed to purchase for plaintiff 3,000 shares of a stock. They sent him memoranda of purchases, one for 2,000 shares and the other for 1,000. The first one contained a notation that the stock had been bought from three named individuals, one of whom was named Maltman. The second block of 1,000 shares the defendants stated was bought entirely from Maltman. Plaintiff paid brokerage commissions amounting to $60 and advanced the necessary margin. He later called for the stock, and at his request it was delivered to another brokerage firm, which subsequently, in accordance with plaintiff’s orders, sold it. Plaintiff’s loss on the sale was $900. Plaintiff produced Maltman, the alleged original owner of some of these shares, who testified that he had never owned any shares of this company. He was confirmed by the testimony of an employee.

Upon this record plaintiff rested, and defendants also rested, and moved for a dismissal of the complaint. A judgment has been entered for $900. The theory of plaintiff’s cause of action, as outlined in his brief, is that the defendants have sold him their own stock. If this had been proved, he would have been entitled to rescind, were he in a position to do so; but the evidence which he has offered falls far short of proving any such cause of action, and it further appears that he is unable to restore the stock. Upon what theory the damages have been awarded by the learned trial court does not appear.

It cannot be sustained by the cause of action suggested in the brief of respondent, and the judgment must be reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, McCook and Crain, JJ.

Judgment reversed and complaint dismissed.

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Bluebook (online)

123 Misc. 225, 204 N.Y.S. 201, 1924 N.Y. Misc. LEXIS 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frary-v-herzig-nyappterm-1924.