
    Iris C. Ryder, App’lt, v. William H. M. Sistare et al., Resp’ts.
    
      New York Common Pleas, General Term,
    
    
      Filed December 3, 1888.)
    
    Stock broker—Action against—Complaint—When no cause op action shown.
    la an action against a stockholder for failure to execute orders for the purchase and sale of stock a complaint which contains no allegation that plaintiff provided the means of payment, or that defendant agreed to advance the same, or that plaintiff placed the stock to he sold within defendants’ reach, or that ha agreed to -sell stocks that plaintiff did not possess or furnish for delivery, does not show a cause of action.
    Appeal from a judgment entered on an order of special term sustaining a demurrer to a complaint on the ground that it does not contain facts sufficient to constitute a cause of action.
    The complaint was as follows:
    That at the periods of time hereinafter referred to the defendants were and still are copartners, doing business as stock brokers in the city of New York under the firm name and style of George K. Sistare’s Sons. That on or about the 30th day of August, 1884, the plaintiff entered into an agreement with the defendants by which the latter promised and agreed in consideration of a commission of one-eighth of one per cent for buying, and a like amount for selling, to buy and sell for the account of the plaintiff upon her order and direction so to do, any of the stocks which are bought and sold in the New York Stock Exchange. That pursuant to said agreement, plaintiff, between the 1st day of March, 1885, and the 10th day of July, 1885, sent and delivered to the defendants thirteen separate orders or directions to buy and sell for her account specific numbers of shares of the stock of the "Western Union Telegraph Company, same being one of the stocks bought and sold in the N.ew York Stock Exchange, at prices therein designated. That at the times said orders or directions were received by the defendants, same could have been executed by the defendants by the excer.cise of reasonable diligence on their part. That in violation of the agreement aforesaid, the defendants neglected, omitted, failed and refused to execute the order and directions aforesaid to the damage of the plaintiff, $4,000. Wherefore, plaintiff demands judgment against the defendants for the sum of $4,000 damages, as aforesaid, with interest thereon from the 15th day of July, 1885, together with the costs of this action.
    
      A. Walker Otis, for app’lt; Davison & Fischer, for resp’ts.
   Van Hoesen, J.

The complaint does not allege that the defendant agreed to advance the money for the purchase of such stocks as the plaintiff might choose to order, nor does it allege that the defendant agreed to sell stocks that the plaintiff did not possess, or to sell stocks that the plaintiff did not furnish for delivery. In the absence of such averments, it was necessary for the plaintiff to allege that she provided the defendant with the means of paying for the stocks that she wished him to buy, and that she placed within his reach the stocks that she instructed him to sell;for unless he agreed to assume the risk, it was not the duty of the defendant to buy or sell stocks on the plaintiff’s account without being provided with the means of carrying out her orders. There is nothing in the complaint, therefore, to show that the defendant was under any obligation whatever to obey the instructions to buy and to sell that the plaintiff is said to have given. Fowler v. N. Y. Gold Ex. Bank, 67 N. Y., 143.

Again under the allegations of the complaint, nothing more than nominal damages could be recovered, even if it be assumed that the plaintiff has stated a cause of action. No special damages are alleged. There is nothing to show that the stocks that the plaintiff instructed the defendant-to buy ever increased in value, or that any change in the market value of the stocks that she instructed him to sell, caused her any loss. For aught that is alleged the plaintiff may not have suffered the slightest pecuniary injury from the defendant’s neglect to execute her orders. ' Though this defect is not a good ground for a demurrer, we deem it proper to call attention to it, that the proper allegations may be inserted if the plaintiff desires to amend. Texas Railroad Company v. Curry, 64 Texas, 85; Rider v. Pond, 19 N. Y., 262.

"We think that the judgment should be affirmed, but we see no objection to granting leave to amend. There may be a question as to whether the case is to be governed by the Chicago Railroad v. Dane (43 N. Y., 241), or by the cases cited in Miller v. McKenzie (95 N. Y., 580, et seq). I have assumed that the agreement sued on is not void for want of mutuality. See also G. N. R. Co. v. Witham (L. R., 9 C. P., 16).

Judgment affirmed, with costs.

Larremore, Ch. J., concurs.  