Cohen v. Minzesheimer

GREENBAUM, J.

From the allegations of the complaint it is to be assumed that the bonds claimed by defendants to have been stolen from them were negotiable, that the plaintiffs were bona fide purchasers, for value, and that plaintiffs had effected a valid sale of the bonds at market prices, unless the public notice given by defendants that they had been stolen made them “undeliverable” under the rules of the Stock Exchange, justifying a refusal by the purchasers to take on that ground. I fail to understand from the allegations in the complaint how the rules of the Stock Exchange may abrogate or nullify the law of the state, under which the plaintiffs could have held the purchasers upon the sale, notwithstanding the defendants’ public notice, of the theft of the bonds. Brentman v. Note (City Ct. N. Y.) 3 N. Y. Supp. 420. If the plaintiffs were in a position to assert their rights against the purchasers, it is not shown how the former sustained any damages by the defendants? alleged unwarranted acts. The case is damnum absque injuria.

The damages sought to be recovered under the second alleged cause of action cannot be established. Expenses incurred in the prosecution or defense of an action are measured by the taxable costs and allowance, if granted, recoverable in the action. Bishop v. Hendrick, 82 Hun, 323, 31 N. Y. Supp. 502, affirmed 146 N. Y. 398, 42 N. E. 542.

Demurrers to complaint sustained, with costs to defendants, with leave to plaintiff to plead over upon payment of costs.