Mattern v. Sage — 16 Daly (N.Y.) 142

Majority

p. 142

Sophia L. Mattern, Appellant, against Russell Sage, Respondent.

(Decided April 7th, 1890.)

Headnote

A broker holding stock as partial security for a debt, with the right to sell it at any time to protect himself, is not legally obligated to sell and realize" ' upon it before bringing action or counterclaiming upon the debt, where the debtor has not directed a sale.

Appeal from a judgment of this court entered upon the report of a referee.

The facts are stated in the opinion.

Ira Shafer, for appellant.

Henry S. Bennett, for respondent.

The main controversy in this action was on the facts. There Was a direct conflict of evidence between the parties upon all the material facts, but, as defendant was corroborated in so many important points by plaintiff’s own letters, we do not see how the learned referee could .have reached any other conclusions than those embodied in his report.

The defendant was not legally obligated to sell and realize upon the stock he holds as partial security for the debt, before counterclaiming and demanding judgment for the whole amount. Defendant claims, and the referee has found, that defendant has been holding this stock for plaintiff’s account for several years, and plaintiff has never directed a sale thereof. Because a broker lias the right to sell stock out at any time to protect himself, it does not follow that he is obliged to follow this course if he chooses to take the risk of his principal’s eventually making good any loss that may occur (See First National Bank v. Wood, 71 N. Y. 409 ). In the ■ case at bar it appears that the stock has been held for such a

p. 143

long period with full knowledge and by mutual arrangement of the parties, presumably in the expectation of a rise. It is therefore equitable, as well as legally justifiable, that when the broker is sued by his principal on account of this and other transactions, he should be allowed to counterclaim whatever indebtedness exists at the time, without, in default of a direct order, being obliged to depart from the former arrangement.

The judgment appealed from should be affirmed, with costs.

Bischoee, J., concurred.

Judgment affirmed, with costs.