
    CLARK a. MEIGS.
    
      New York Superior Court;
    
      Special Term, May, 1861.
    Complaint.—Action against Brokers fob selling Stock.
    In an action against brokers for selling, without authority, stock which they had purchased for the plaintiffs, at the plaintiffs’ option, the complaint should show that the plaintiffs demanded the stock, and tendered the amount due therefor.
    Demurrer to complaint.
    
      
      Selah Squires, for the plaintiff.
    
      Wheeler & Armstrong, for the defendants.
   Robertson, J.

—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 defendant 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 defendant on the purchase of. the stock. Until the plaintiff had made such demand and tender, he had no cause, of action.

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