Brown v. Rosenbaum — 259 A.D. 304

Majority

p. 304

Frederick Brown, Respondent, v. Louis N. Rosenbaum, Appellant.

First Department,

April 19, 1940.

p. 305

Charles H. Tuttle of counsel [Breed, Abbott & Morgan, attorneys], for the appellant.

Kenneth E. Walser of counsel [James H. Halpin with bim on the brief; Spence, Windels, Walser, Hotchkiss & Angell, attorneys], for the respondent.

The judgment should be reversed because no identified shares of stock were allocated to the defendant’s contract of purchase until after the failure of the Harriman National Bank and Trust Company. (Broderick v. Aaron [Rice], 264 N. Y. 368 ; Broderick v. Adamson [Greif], 270 id. 260.) We have concluded, however, to order a new trial rather than to dismiss the complaint for the reason that this question may not have been sufficiently raised and adequately litigated at the trial. (See Persky v. Bank of America National Association, 261 N. Y. 212 .)

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.

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

Cases cited

Broderick v. Aaron 264 N. Y. 368 N.Y. 1934-05-22 p. 305
Persky v. Bank of America National Ass'n 261 N. Y. 212 N.Y. 1933-02-28 p. 305