
    NEW YORK SUPERIOR COURT.
    William Clark agt. Charles J. Meigs and others.
    In an action against stockbrokers for damages in selling plaintiff’s stock (purchased payable on time at his option) short of the prescribed time, and in violation of his instructions, the complaint should allege a demand, upon the defendants, and an exercise of plaintiff’s option; also, a tender of the amount due to the defendants on the purchase of the stock.
    
      
      New York Special Term, May, 1861.
    Demurrer to complaint.
    Selah Squires, for plaintiff.
    
    Wheeler & Armstrong, for defendants.
    
   Robertson, Justice.

The complaint in this case alleges that the defendants, as stockbrokers, purchased on account of the plaintiff, and by his order, two hundred shares of the stock of the Illinois Central Railroad Company, in November last, at sixty-one cents on the dollar of the par value of the stock.

The stock was payable to the plaintiff at his option any time within sixty days. It is alleged that the defendants, in violation of their agreement and duty as brokers, and against the express instructions of the plaintiff, sold the stock in four days after, for the price of fifty-two cents on the dollar.

Plaintiff also avers, that on the 14th day of January last the stock of the company had risen to seventy-seven and a half cents, and that in consequence of the act of defendants he suffered a loss of $5,000, for which he brings this action.

A demurrer is interposed on the ground that the complaint should have set forth a demand upon the defendants, and an exercise of the plaintiff’s option; also a tender of the amount due to the defendants on the purchase of the stock. Until the plaintiff had made such demand and tender, he had no cause of action.

Judgment for defendants on demurrer, with leave to the plaintiff to amend on payment of costs.  