
    ROCK v. CARPENTER et al.
    (Supreme Court, Appellate Term.
    May 15, 1908.)
    1. Brokers—Actions fob Breach of Instructions—Ratification of Breach —Effect.
    There can be no recovery from a broker for breach of instructions to sell stock at a certain price, where plaintiff admits subsequent payments of margin and interest, and a complete ratification of the alleged breach is also shown by the accounts and correspondence between the parties.
    
      2. Appeal—Issues of Fact—Verdict on Conflicting Evidence—Conclusiveness.
    Where issues of fact are determined by the jury on conflicting evidence, the findings cannot be disturbed on appeal.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.]
    3. Same—Disposition—Modification—Elimination of Recovery on Improper Ground.
    Where the verdict of the jury is in part made up of a sum fixed by the court as the amount to which plaintiff would be entitled under a certain cause of action, on which there should have been no recovery, that sum should be eliminated, and the judgment correspondingly reduced.
    Appeal from City Court of New York, Trial Term.
    Action by Roslyn Rock against Joseph N. Carpenter and others. From a judgment for plaintiff, defendants appeal.
    Modified and affirmed.
    Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.
    Milton Mayer, for appellants.
    House, Grossman & Vorhaus (Louis J. Vorhaus and Joseph Fischer, of counsel), for respondent.
   GREENBAUM, J.

Assuming that defendants in September, 1906, omitted to follow plaintiff’s instructions to sell at 146 the Pennsylvania Railroad stock which they held as brokers for her, the evidence conclusively establishes, both from plaintiff’s own testimony that subsequent payments were made by her for margin and interest and from the accounts and correspondence that passed between them, a complete ratification of defendant’s alleged breach. Under these circumstances, it seems to me unnecessary to dwell upon the question of election, which the defendants raised at the close of plaintiff’s, and again at the close of the entire, case, as it is clear that plaintiff -in no event was efititled to any recovery under the first alleged cause of action.

The issues presented under the second cause of action were purely of fact, and, the jury having found in favor of the plaintiff upon the conflicting, proofs of the parties, no reason exists for disturbing the verdict in this regard. The verdict of the jury being in part unquestionably made up of the sum of $300 fixed by the court as the amount to which plaintiff would be entitled under the first cause of action, that sum will be eliminated, and the judgment reduced to $954.38.

Judgment will be modified accordingly, and, as modified, affirmed, without costs of appeal to either party. All concur.  