Gutman v. Bronx Borough Bank

188 A.D. 664, 177 N.Y.S. 173, 1919 N.Y. App. Div. LEXIS 7779

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1919
• Status: Published

Opinion

Smith, J.:

Plaintiff was speculating in Wall street. She had purchased certain stock upon margin. She had $400 collateral security for the margin and had paid $800 in cash therefor. Two days prior to November first the plaintiff drew a check for $200 and mailed it to the broker. This check was not paid by the bank and .the plaintiff’s stock was sold out and the plaintiff lost her collateral and her stock. It seems that the bank wrongfully refused to pay this check. The refusal arose from a mistake in failing to credit the plaintiff’s account with $40 which had been deposited by the plaintiff’s husband. The question raised upon this appeal is whether the wrongful refusal to pay this check resulting in the sale of the plaintiff’s collateral by the stockbroker authorizes the recovery by the plaintiff, as damages, of the value of the collateral sold and the cash deposited as margin. There was no proof as to the course of the stock market thereafter, or whether the plaintiff would not have lost both her collateral that she had up and the $200 represented by the check, if the check had been cashed.

No facts are shown from which the jury was authorized to assess plaintiff’s actual damages caused by defendant’s negligence.

The determination should, therefore, be reversed and a new trial directed in the Municipal Court, with costs in all courts to appellant to abide the event.

Clarke, P. J., Dowling, Page and Philbin, JJ., concurred.

Determination and judgment reversed and new trial ordered, with costs to appellant in all courts to abide event.