Shiel v. Stoneham , 135 N.Y.S. 1024 ( 1912 )

Bijub, J.

I concur for reversal of the judgment which in effect sustained defendants’ counterclaim, on the ground that it sufficiently appears that defendants did not “ keep at all times on hand or under their control either the particular shares purchased for their customer or an equal amount of other shares of the same kind and have them in such a situation that the customer on paying the amount due him thereon could at any time obtain them.” Taussig v. Hart, 58 N. Y. 425, 429; Helm v. Ennis, 109 App. Div. 42, 44; Caswell v. Putnam, 120 N. Y. 153; Dos Passes Stock B. (2d ed.) 257. The fact, if it be true, that defendants had plaintiff’s stock or its equivalent in Toronto or Salt Lake City does not satisfy this requirement.

Plaintiff appeals only from so much of the judgment as sustains defendants’ counterclaim.

Judgment reversed and new trial ordered, with costs, to appellant to abide event.