
    Barnet Faroll and Others, Copartners, Doing Business under the Firm Name and Style of Faroll Bros., Appellants, v. K. Japha & Company, Inc., Respondent, Impleaded with Karl Japha and Another, Defendants.
    First Department,
    May 29, 1931.
    
      
      Harry T. Zucker of counsel [Edgar J. Bernheimer with him on the brief], for the appellants.
    
      Frederick Behr, for the respondent.
   Per Curiam.

This is an action by brokers to recover a balance due on account of stock transactions. The counterclaim states in effect that all the orders placed by the plaintiffs on behalf of the defendants as alleged in the complaint were given for immediate delivery or within a reasonable time in accordance with the rules of various stock exchanges and that no deliveries Were made within a reasonable time. The counterclaim, however, contains no allegation of a demand and tender of the purchase price. This is a fatal defect. The shares of stock purchased were pledged for the payment of the purchase price. To put the broker in default a demand and tender are necessary. Payment and delivery are concurrent conditions. (See Weir v. Dwyer, 62 Misc. 7, 13; Burnham v. Eyre, 123 App. Div. 777, 779; affd., 196 N. Y. 560; Drake v. Hodgson, 192 App. Div. 676, 682; West v. Beardsley, 186 id. 501; Meyer Stockbrokers & Stock Exchanges, [1931] 295; Williston Cont. § 1043.)

The order should be reversed, with ten dollars costs and disbursements, and the motion granted with ten dollars costs, with leave to defendant, respondent, to serve an amended defense and counterclaim, upon payment of said costs.

Present — Finch, P. J., Meeeell, O’Malley, Shebman and Townley, JJ.

Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the defendant, respondent, to serve an amended defense and counterclaim within ten days from service of order upon payment of said costs.  