Katz v. Mathews — 216 N.Y. 701

Majority

p. 701

Bernard Katz, Appellant, v. Edward R. Mathews, as Surviving Partner of E. R. Mathews & Company, Respondent.

Headnote

Katz v. Matthews, 159 App. Div. 905 , reversed.

(Submitted October 28, 1915;

decided November 16, 1915.)

Appeal from a judgment, entered January 3, 1914, upon an order of the Appellate Division of the Supreme

p. 702

Court in the first judicial department, which affirmed an interlocutory judgment of Special Term - sustaining a demurrer to the complaint.

Willard G. Stanton and A. Delos Kneeland for appellant.

William E. Sims for respondent.

This crudely drawn complaint contains, we think, the elements of a cause of action. We gather from its averments that the defendant’s firm undertook to buy stocks and bonds for the plaintiff and upon his order; that he furnished them with margin as requested; that thereafter they reported that they had bought for him some shares of stock; that they notified him that they held the shares “ for and on his account; ” that there was thus a declaration of trust which made them accountable for the stock as his trustees (Martin v. Funk, 75 N. Y. 134 ); and that having become accountable to the plaintiff for the stock, they sold it without notice. It is true that these statements are obscurely made, and are imbedded in a mass of evidence and conclusions. We think, however, that a liberal construction enables us to extract them from the pleading; and if that is so, there is the statement of a cause of action. The plaintiff has not lost his cause of action by the novel averment in his complaint that “ the theory upon which this action was brought is that said firm and this defendant have been guilty of a breach of contract.” The sale was a tort, but at the plaintiff’s election the tort could be waived and the defendant held liable as upon a contract.

The judgment should be reversed and the demurrer overruled, with leave to the defendant to answer upon the payment in twenty days of costs in all courts.

Willard Bartlett, Ch. J., Hiscook, Chase, Cuddeback, Hogan, Cardozo and Pound, JJ , concur.

Judgment reversed, etc.

Cases cited

Martin v. Funk 75 N. Y. 134 N.Y. 1878-11-12 p. 702