Lee v. Gargulio — 45 N.Y. Super. Ct. 595

Majority

p. 595

DAVID B. LEE, Plaintiff and Appellant, v. JOSEPH GARGULIO, et al., Defendant and Respondent.

Headnote

Brokers—when principal not relieved op liability to, by REASON OP SUBSEQUENT GUARANTY MADE BY THIRD PARTY.

The counter-claim herein averred that the defendants were the brokers of the plaintiff in the purchase ,of certain stock, and further alleged, by specific averments, that by their subsequent dealings with said stock at the plaintiff’s request, he became indebted to them in the sum of $8,937, with commissions, which had been demanded.

The plaintiff, while admitting his liability originally, sought to avoid it, upon the ground that it was to be implied, from a guaranty subsequently made by one Fitler, and from the other facts in the case, that he should in no event be liable to pay to defendants any loss which should accrue upon the sale or repurchase of said stock, or upon the sale of any stock that should be re-purchased in the place thereof.

The guaranty in question was inclosed in a letter to defendants, which began:

“ Yours, notifying me of acceptance of my offer by customer at 35, at hand. I accept his conditions as set forth in your letter, and inclose guaranty, &c.” The guaranty inclosed was in these words: “ For and in consideration of one-half the profit

p. 596

on 800 shares, &c., I hereby guarantee the holder of said 800-shares against all or any loss whatsoever, and further agree, in case of decline of said stock, below 85, to deposit margin, if called on to do so, to cover all or any decline as fast as it may bo made in said stock. Order’s to sell and re-purchase said 800 shares, or any part thereof, to be given exclusively by me, the-undersigned, for a period of sixty days from the date hereof.”'

Before Sedgwick and Vah Vorst, JJ.

Decided April 7, 1879.

Held, by the court, that the defendant, in assenting to the operation of the above, and agreeing to act upon it, did not thereby release the plaintiff from his liability on the original agreement. Ho fact was accomplished by the guaranty, which was inconsistent with the first arrangement.

There being nothing else in the testimony sufficient to make-, an issue as to the counter-claim, the direction of a verdict for defendant was properly made.

Appeal from judgment entered on verdict for defendant under the direction of the court.

Stickney & Shepard, attorneys, and Albert Stick ney, of counsel, for appellants.

Wetmore & Jenner, attorneys, and Edmund Wetmore, of counsel, for respondents.

wrote for affirmance with costs,, holding as above laid down.

Van Vorst, J., concurred.