Minor v. Beveridge (141 N.Y. 399, 1894)

Bartlett, J.

The plaintiff, as assignee for the benefit of creditors of P. W. Gallaudet & Co., stock brokers, sued the defendant to recover a balance alleged to be due from her on a speculative account which she had with Gallaudet & Co. at the time of their failure, I4ovember 10th, 1890.

The cause was brought on for trial at a circuit court in the city of 24ew York and at the close of plaintiff’s case the complaint was dismissed and the exceptions ordered to be heard in the first instance at the general term. The general term overruled the exceptions and ordered judgment for defendant, dismissing complaint, with costs. The plaintiff appeals from that judgment.

The question presented is whether the trial judge was justi•fied in taking the case from the jury. The defendant’s contention is that P. W. Gallaudet & Go. sold the stocks held in her account without notice, and for that reason their assignee cannot' recover. The plaintiff insists that demand and notice were duly given to defendant through her son, as her agent, before sale of the stocks, and that she is bound thereby; and even if there was a sale without notice, the defendant can only be allowed her actual damages in reduction of plaintiff’s claim. The evidence shows that Alven Beveridge, the son of the defendant, was the son-in-law of P. W. Gallaudet, and from the year 1881 to November 10th, 1890, the day when the firm of P. W. Gallaudet