
    Francis H. Saltus, Respondent, v. Sydney C. Genin, Alfred Lockwood and Le Grand Lockwood, Appellants.
    1. Where all the material facts alleged in the plaintiff’s complaint, as the ground of the plaintiff’s claim, and constituting the cause of action upon which he relies, are denied in the defendants’ answer, and are disproved, the plaintiff is not entitled to any judgment, although facts appear on the trial which constitute another cause of action wholly inconsistent with that stated in the complaint.
    2. A plaintiff cannot have judgment for a sum of money, which in his complaint he does not claim, upon grounds which in such complaint he denies to be true, and which on the trial he attempts to disprove.
    3. Accordingly where the complaint alleged that the plaintiff employed- the defendants as brokers, to purchase for him on credit, certain shares of stock, and delivered to them other stock as security for their indemnity, "and that they afterwards rendered him an account, representing that such purchase had been made, and subsequently, after notice to him that they should sell the same, rendered an account representing the fact of such sale, when in truth such purchase and sale were not real but fictitious; and averring, also, that a charge in such account rendered for negotiating a loan upon the stock was also fictitious, and praying judgment thereupon, that defendants return to the plaintiff the stock so delivered to them as security.
    And upon the trial it was found that the defendants did make the purchase according to their employment, and did advance the money therefor, and in order to the holding of the stock for the period contemplated by the plaintiff, did negotiate a loan thereon.
    
      Held, that the plaintiff was not entitled in this action to a judgment for damages for the value of the stock so purchased, as upon an illegal conversion of the plaintiff's stock, on its appearing that prior to the commencement of the suit the defendants had sold the same.
    4. The variance between the complaint and the case proved is material and cannot be cured by conforming the pleadings to the facts proved. (Code, § 173.)
    5. In such case the plaintiff cannot have judgment under § 275 of the Code, because the relief which the proofs would warrant is not “ consistent with the case made by the complaint and embraced within the issue.”
    6. When the allegations and the prayer of the complaint present a case in equity, proper to be tried by the Court at Special Term without a jury, and on such trial it appears that the plaintiff’s cause of action, if any, is one for the recovery of money only, which could only be tried by jury (unless a jury was waived), Qucere, whether the Special Term has jurisdiction to order judgment for the plaintiff.
    7. The effect of uncontradicted evidence showing an admission by the plaintiff wholly inconsistent with the finding of the Judge, considered.
    (Before Dube,' Ch. J., and Woodruff, J.)
    Heard, October, 1857;
    decided, July 3d, 1858.
    This action was tried as an equity cause on the 3d of December, 1856, before Mr. Justice Hoffman, at Special Term, without a jury. On the trial the Court ordered judgment for the plaintiff, and from the judgment entered upon his decision the defendants appealed to the General Term. The pleadings were as follows:
    Francis H. Saltus, plaintiff, complains and alleges:
    
      First. That on or about the 11th day of January, 1856, the plaintiff gave the defendants, who are stock-brokers and partners under the firm name of Genin & Lockwood, an order to buy for the plaintiff two hundred shares of the stock of the Accessory Transit Company, a company incorporated by the Government of the State of Nicaragua.
    
      Second. That as security for the fulfillment by the plaintiff of said order, the plaintiff deposited with the defendants a certificate for thirty-five shares of the stock of the Sixth Avenue Railroad Company, a company incorporated under the Laws of the State of New York, and doing business in the city of New York, together with a power of attorney to transfer the said thirty-five shares.
    
      Third. That the defendants afterwards delivered to the plaintiff two memoranda, of which copies are hereto annexed, marked A and B; but no such stock was ever transferred or delivered to the plaintiff.
    
      Fourth. That afterwards the defendants gave the plaintiff notice that they should sell the said stock of the Accessory Transit Company, and thereupon delivered to the plaintiff a memorandum, of which a copy is hereto annexed, marked C; but the plaintiff has never transferred or delivered any such stock.
    
      Fifth. That afterwards, and on or about the 11th day of April, 1856, the defendants rendered to the plaintiff an account, of which a copy is hereto annexed, marked D; but no money has been paid to the plaintiff, nor has the said Sixth Avenue Railroad stock ever been returned to him.
    
      Sixth. That the said purchases and sales of the stock of the Accessory Transit Company were not real, but fictitious; and that said defendants were not, at the time of making the contracts to sell said shares of stock, nor at the time of selling the same, in the actual possession of the certificates, or of any other evidence of such shares, or otherwise entitled in their own right, or duly authorized by any person so entitled, to sell or transfer the said certificates of shares so contracted for.
    
      Seventh. That the commission charged in the said account, for negotiating a loan, is fictitious; that the defendants never negotiated any loans for the plaintiff; that the money advanced was advanced by themselves, and the one hundred and fifty dollars is a usurious premium for the said loan, over and above the sum per cent allowed by law; that being the sum for the loan of said money beyond and above the rate of seven dollars upon one hundred dollars for one year, and renders the transaction illegal and void.
    Wherefore the plaintiff demands judgment; that the defendants return and transfer to him the said thirty-five shares of stock of the Sixth Avenue Railroad Company, and pay any balance that may be found due to him on the transactions between him and them in respect to the said stock of the Accessory Transit Company, and the Sixth Avenue Railroad Company.
    A.
    No, 22 William Street, ) New York, January 8ft, 1856. j Genin & Lockwood have this day bo’t for account of
    F. H. SALTUS, Esq.,
    100 shares Nicaragua Co. 25 cts. B. of N. H. Mcyiokar.
    B.
    No. 22 William Street, ) New York, January 8th, 1856. )
    Genin & Lockwood have this day bo’t, between boards, for account of
    F. H. SALTUS, Esq.,
    50 Nicaragua Tr. Co., at 25 cts. B. of Stevens, Wallace & Co.
    50 do. at 25 cts. B. of S. M. Livingston.
    c.
    No. 22 William Street, ) New York, April 7th, 1856. )
    Genin & Lockwood have this day sold for account of
    F. H. SALTUS,
    100 Nicaragua 138 B. to J. G. Weston & Co.
    50 do. 138 “ “ Sands & Wells.
    50 do. 13| “ “ De Coppet & Co.
    
    D.
    New York, April 11, 1856.
    * Bo’t for account of F. H. Saltos, Esq.,
    By GENIN & LOCKWOOD, Stock-Brokers,
    No. 22 William Street.
    Jan’y 9. To 200 Nicaragua, at 25.......... §5,000.00
    90 days int., 7 per c................... 87.50
    Com. 8, ............................ 50.00
    Corns, for negotiating loan............. 150.00
    -$5,287.50
    Sold.
    April 8. By 200 Nicaragua, 138............... $2,780.00
    Com. f, .....................,....... 25.00
    $2,725.00
    “ 35 Sixth Avenue, 8ti................ 2,957.50
    - 5,682.50
    Due, F. H. Saltas,.................... $395.00
    The defendants above named, Sydney C. Genin and Alfred Lockwood, in answer to the complaint in this action, admit:
    
      
      First. That on or about the 11th day of January, 1856, the plaintiff gave to the firm of Genin & Lockwood, who are stockbrokers and partners, an order to buy for the plaintiff two hundred shares of the stock of the Accessory Transit Company; but whether the said Accessory Transit Company is or was a company incorporated by the government of the State of Nicaragua, as alleged in said complaint, the defendants have no knowledge or information sufficient to form a belief, and therefore deny the same.
    
      ¡Second. And the defendants further admit, that as security for the fulfillment by the plaintiff of said order, the plaintiff deposited with said firm a certificate for thirty-five shares of the stock of the Sixth Avenue Railroad Company, a company incorporated under the Laws of the State of New York, and doing business in the city of New York, together with a power of attorney to transfer said thirty-five shares. And they aver that said thirty-five shares of the stock of the Sixth Avenue Railroad Company was hypothecated with said firm by plaintiff, as security for their purchase of said two hundred shares of the stock of the Accessory Transit Company, and for the money advanced and to be advanced by them in making such purchase, and for holding and carrying the same for the benefit of plaintiff. And that by agreement between the plaintiff and said firm, and for the better security of said firm, the said shares of the Accessory Transit Company were purchased and held by said firm in their own name.
    
      Third. And they further admit that said firm afterwards delivered to the plaintiff two memorandums, of which the copies marked A and B, annexed to said complaint, are correct. And they aver that the stock mentioned in said memorandums was purchased by said firm of Genin & Lockwood in the name of said firm, and held by said firm in their own name, according to the agreement above mentioned, and not in the name of the plaintiff- and that they paid therefor the sum of five thousand dollars on the said 9th day of January, 1856.
    
      Fourth. And they admit that afterwards the said firm gave the plaintiff notice, mentioned in the complaint, that they should sell the said stock of the Accessory Transit Company, and afterwards delivered to the plaintiff, the memorandum of which the one marked C, annexed to said complaint, is a copy; and they aver that said plaintiff authorized and ordered said firm to sell said stocks on his account.
    That said sales, mentioned in the memorandum marked 0, were made strictly in accordance with the instructions of said plaintiff, and with the notice above mentioned. And that the transfer and delivery of said stock so sold was made by said firm, that being the only way it could be done, said stock being held in the name of said firm, as above mentioned, as the plaintiff well knew.
    
      Fifth. And the defendants further say, that said firm were afterwards directed by said plaintiff to sell the said thirty-five shares of the stock of the Sixth Avenue Railroad Company at 84£ cents, that in accordance with such instructions said firm did sell said stock at 84|-, and credited the same to the plaintiff.
    That said firm did, on or about the 11th day of April, 1856, render to the plaintiff an account, of which the copy marked D, annexed to said complaint, is correct; that said account is correct, and that the plaintiff is indebted to said firm for interest, commissions, and for negotiating loans as therein stated.
    
      Sixth. And the defendants further answering said complaint, deny each and every allegation contained in the sixth and seventh subdivisions of said complaint.
    
      Seventh. And the defendants further deny each and every allegation in said complaint contained (except such as are herein before admitted, traversed or denied) the same as if such allegations were herein also set forth in detail and severally denied.
    The defendant, Le Grand Lockwood, denies each and every allegation of the complaint.
    Mr. Justice Hoffman’s Findings of Fact and Conclusions of Law, December Special Term, 1856:
    “First. The defendants on the 8th day of January, 1856, contracted for the purchase of 200 shares of Nicaragua stock from three different parties, and by the terms of the bargain, as explained by the evidence, it was to be delivered on the 9th of January. Such contract was made, in pursuance of the orders of the plaintiff. Each of the parties from whom such purchases purported to be made, owned at that time, viz.: the 9th of January, stock equal to the amount sold. Some of the said stock was not in such parties’ name, but was actually owned by them.
    “Second. It is immaterial whether on the 8th of January stock was actually held by the proposed vendors. It is also immaterial whether there was a binding contract made with them on the 8th January. The legal relations are to be determined by the tacts as they existed on the 9th. The actual transfer, if made, removed any objections which might have existed when the contract was executory.
    “Third. The defendants did, on the 9th of January, receive and pay for 200 shares of the stock in question, to be held on account of the plaintiff, subject to his order and disposition.
    “Fourth. For the fulfillment by the plaintiff of his contract with the defendants he deposited with them a certificate for thirty-five shares of the stock of the Sixth Avenue Railroad Company, with a power of attorney to transfer the same. This deposit was made as security to the defendants for making the said purchase, and for holding and carrying the said Nicaragua stock on behalf of the plaintiff
    “Fifth. The Nicaragua stock was carried by the defendants from the 9th of January until the 8th of April, 1856. The agreement, originally, was to hold it for thirty days, and the extension appears to have been subsequently agreed upon or acquiesced in.
    “Sixth. On the 13th March, 1856, the defendants had no stock standing to their credit on the books of the Company, nor on the 14th, 15th, or 16th of the same month. From the 31st of March to the 3d of April, inclusive, no stock stood to their credit. On the 3d and 4th of April they had fifty shares. On the 5th, 6th, and 7th of such month there were no shares to their credit; and on the 8th of April, 200 were transferred to them, and the same number transferred by them. The said 200 shares were on that day sold as and for the shares held by them for the plaintiff.
    “Seventh. The defendants had on the 13th day of March, and all times from the 9th of January to the 11th day of April, an amount of stock equal to 200 shares deposited with other parties from whom they had borrowed money upon the security of such stock, and redeemable upon the payment of such loans.
    “Eighth. The price of the stock on the 13th of March, 1856, was an average of 20-J- per cent. The case as made out by the proof is one of an advance of money by the defendants, to the use of the plaintiff, upon the security of this, as well as of the other stock, to be held for ninety days.
    I consider the law applicable to this case to be, that the defendants were bound to have kept in their name upon the books of the Company, or to have within their power, or in their possession, during the period of the agreement, the amount of 200' shares, and that the mere right to recall stock deposited as security for moneys borrowed, was not such a possession or control as the law requires. (Nourse v. Prince, 7 John. Oh. Rep., 69; 4 id., 490; Allen v. Dylcers, 3 Hill, 593; 7 id., 497; Horton v. Morgan, Superior Court, General Term, May, 1856; 6 Duer, 56.)
    “Ninth. The plaintiff, when dealing with brokers as to stocks, subjected himself to the peculiar custom of that body of agents, when such custom is not in violation of law, and when proof of it can be legally introduced. By that custom the charge of three-eighths of one per cent for the two periods of thirty days after the expiration of the first period was justified.
    “ Tenth. The sale of the Sixth Avenue Railroad stock, at the price obtained, was sanctioned by the plaintiff.
    “Eleventh. The plaintiff was not bound by his admission that the account was correct, except as to the $150, there being no evidence establishing that he knew at the time of the stock having been parted with.
    “ Twelfth. There was no usury in the original transaction in January, 1856; no agreement for a loan of money upon any rate of interest beyond what was legal. If the charge of $150 made in the account rendered in April was improper, it was on the ground of an extravagant and unwarranted charge, not a charge in pursuance of any agreement made at the time of the advance.”
    Upon these findings and conclusions, judgment was ordered and entered for the plaintiff as follows: “ This cause having been tried before Mr. Justice Hoffman, without a jury, it is ordered and adjudged that the plaintiff do recover of the defendants the sum of seventeen hundred and fifty-five dollars, with interest thereon from the 13th day of March, 1856, being eighty-seven dollars and fifty-three cents; and also one hundred and fifteen dollars and six cents, being the costs of this action, amounting in all to the sum of one thousand nine hundred and forty-seven dollars and fifty-nine cents ($1947.59).”
    Some of the proofs given on the trial are mentioned in the opinion of the Court.
    Due exceptions were taken to the decision of the Judge at Special Term.
    
      Charles Tracy, for the (defendants) appellants.
    
      David Dudley Field, for the (plaintiff) respondent.
   By the Court.

Duer, Ch. J.

—This case comes before us upon an appeal from a judgment at Special Term in favor of the plaintiff for $1,755, with interest and costs.

The case was tried by the Judge who heard it without a jury, but it does not appear that it was so tried by the consent of the parties.

In order that the conclusions to which we have come may be properly understood, it will be necessary to give a brief statement of the pleadings, and of those portions of the findings and decision of the Judge, and of the evidence upon the trial that have a bearing upon the questions upon which alone our decision will turn.

The complaint alleges that upon the 11th day of January, 1856, the plaintiff gave to the defendants, who are j>artners and stock-brokers, an order to purchase for him two hundred shares of the capital stock of the Accessory Transit Company, and at the same time deposited with them, as a security for his own performance of the contract, thirty-five shares of the stock of the Sixth Avenue Railroad Company, with a power of attorney to transfer the same; that shortly thereafter, the defendants delivered to the plaintiff two memoranda, showing that they had purchased on his account from different persons, 200 shares ■of the stock of the Nicaragua Accessory Transit Company, the stock to which his order related, at 25 per cent, but that no such shares were transferred or delivered to the plaintiff; that subsequently the defendants gave him notice that they should sell the said stock, and thereafter delivered to him a memorandum dated 7th April, 1856, showing that they had sold the same, at the price of 13f per cent, but that he, the plaintiff, never transferred or delivered the shares to any person; that on the 11th day of April, 1856, the defendants rendered to the plaintiff an account, of which a copy was annexed, but that no money had been paid to him, nor had" the Sixth Avenue Railroad stock ever been delivered to him. In the account so rendered by the defendants the plaintiff was charged with $5,000, as the price of the Nicaragua stock, with $87.50 as interest thereon, and $50 for commission, and $150 as a commission for negotiating a loan, the sum total being $5,287.50, and he was credited with $2,725 as the proceeds of the sale and commission of the Nicaragua Transit Company shares, and with $2,957.50 as proceeds of the sale of the stock of the Sixth Avenue Railroad Company. The aggregate being $5,682.50, thus leaving and stating $395 as a balance'due to the plaintiff.

The complaint then averred that the purchases and sales of the Nicaragua stock in the account rendered were not real but fictitious, and that the commission therein charged for negotiating a loan was also fictitious, and it closed with a demand of judgment by the plaintiff that the defendants should return and transfer to him the thirty-five shares of stock of the Sixth Avenue Railroad Company, -and should pay to him any balance that might be found due to him upon the transactions between them.

The answer of the defendants Grenin and A. Lockwood admitted the order for the purchase of the shares of the Accessory Transit Company, as given to the firm of Grenin & Lockwood, and the deposit with them of thirty-five shares of the Sixth Avenue Railroad Company, as a security, and averred that by agreement between the plaintiff and them, the Nicaragua shares were purchased and held by the firm in their own name. It averred that the purchase was in fact made, and the shares purchased so held by them, and that the subsequent sales both of the Nicaragua and of the Sixth Avenue Railroad Company shares were authorized and ordered by the plaintiff to be made on his account, and that the account rendered to him was in all respects correct. The defendant, Le Grand Lockwood, answered separately and denied all the allegations in the complaint.

What are the issues, and in our judgment the only issues, raised by these pleadings, we shall hereafter state.

It was clearly proved upon the trial that the two hundred shares of Kicaragua stock were purchased by the defendants at the time, and for the price mentioned in the account which they rendered, and that they advanced the funds for that purpose. That they carried the stock, by which, it seems, is meant that they provided funds or credit for its payment, for the period of ninety days from the date of the purchase, and that by so doing the credit which it was originally agreed should be allowed to the plaintiff, as the purchaser, was extended sixty days; that at the end of the ninety days they sold the stock for the price mentioned in the account, and that the plaintiff had full notice of the sale and its result. And that with this knowledge he himself ordered the sale of the thirty-five shares of the Sixth Avenue Railroad stock, at the price that was obtained for it; and finally, that after the account of the defendants had been rendered to him, and with the account in his hands, he, in express words, admitted that the charges which it contained were correct, with the single exception of the charge of $150, as a commission for negotiating a loan.

All the facts above stated are substantially found by the Judge, but he finds these facts in addition: That on the 13th day of March, 1856, the defendants had no stock standing to their credit on the books of the Kicaragua Transit Company, but that on that day, and at all times from the 9th of January to the 11th of April, when the sale was made, they had an amount of stock equal to 200 shares deposited with other parties from whom they had borrowed money upon the security of the stock, and redeemable upon the payment of such loans, and that upon the 13th of March the average price of the stock was 20£ per cent.

The learned Judge states the law applicable to these facts to be, that the defendants were bound to have kept in their name upon the books of the company, or to have within their power, or in their possession during the period of the agreement, the amount of 200 shares, and that the mere right to recall stock deposited as security for moneys borrowed was not such a possession or control as the law requires. The Judge also found as conclusions of law, that the charge made by the defendants of f of one per cent, for carrying the stock for the two periods of thirty days, after the expiration of the first, was justified by a usage of brokers binding on the plaintiff; and that the plaintiff was not bound by his admission that the account of the defendants was correct, except as to the charge of $150, there being no evidence that he knew, at the time, of the stock having been parted with. The judgment which the learned Judge finally rendered, and from which this appeal is taken is, that the plaintiff do recover of the defendants the sum of $1,832.53, being the amount of $1,755, with interest from the 13th day of March, 1856, together with their costs to be adjusted. •

The sum of $1,755 is the difference between the market value of the two hundred shares on the 13th of March, and the sum for which, as the proceeds of their sale, the plaintiff was credited in the account rendered to him by the defendants on the 11th of April. The judgment therefore manifestly proceeds upon the ground that on the 13th of March the stock belonged to the plaintiff, and that the defendants, by parting with its possession on that day, unlawfully converted the same to their own use, and rendered themselves liable to him as owner.

The counsel for the defendants filed sixteen exceptions to the decision of the Judge, but there are only two of these that we shall notice, as they distinctly raise the only question that we propose to consider and determine.

The first of these exceptions is to so much of the decision of the Court as declares that the plaintiff was not bound by his admission that the account was correct, except as to the $150; and the second is to the whole decision, upon the ground that no action could be maintained upon the pleadings for the conversion by the defendants of the Nicaragua stock to their own use; and the questions that arise upon those exceptions, in the order in which we shall consider them, are:

First Whether, considering the nature of the action and of the relief sought, it was within the power, and, indeed, the jurisdiction of the Court to order the judgment appealed from ? and

Second. Whether it does not appear from the evidence, that all the proceedings of the defendants in reference to the sale, both of the Nicaragua and of the railroad stock, were so fully known and sanctioned by the plaintiff as to preclude him from disputing their legality ? and, if either of these questions must be determined in favor of the defendants, it is plain that the judgment appealed from must be reversed, and a new trial be ordered.

I. The only cause of action alleged in the complaint is that the purchase and sale of the Nicaragua stock, as stated in the account of the defendants, were pretended and fictitious, and the relief demanded is exactly that to which upon proof pf these allegations the plaintiff would be entitled, namely, the return and transfer to him of the thirty-five railroad shares which he had deposited with the defendants as a collateral security. The- cause of action for which the judgment was rendered is, that the plaintiff was the lawful owner of the Nicaragua shares which he had ordered to be purchased, and that the defendants unlawfully converted the same to their own use. It is impossible to say that the difference between these causes of action can be regarded as an immaterial variance which the Court was at liberty to disregard, or even as a variance, which, under any possible construction of the provisions of the Code, might be- cured by an amendment. It is evident that the cause of action for which-the plaintiff was permitted to recover, not only differed in its entire scope and meaning from that stated in the complaint (Code, § 171), but directly contradicted all the allegations in the complaint upon which the demand for relief was founded. The complaint avers that the Nicaragua shares ordered by the plaintiff were never purchased by the defendants. The Judge decided, and his judgment necessarily implies, that the purchase was made by them in conformity to his order. The complaint denies that any moneys were advanced by the defendants on the plaintiff’s account. The Judge decided, and his judgment implies, that they advanced the whole sum which they charged as the purchase money of the stock. The complaint denies that any loans were negotiated .by the defendants for the plaintiff. The Judge decided that such loans were negotiated, and this also- his. judgment. implies, since otherwise the $150 which he allowed to the defendants for negotiating such loans,, would have been added to the sum. for which judgment was rendered. The manifest result is that the plaintiff was adjudged to be entitled to a sum of money that he never claimed, and to" be so entitled upon grounds that in his complaint he denied to be true, and upon the trial attempted to disprove. The only issues made by the pleadings were, whether the purchase and sale of the nicaragua stock were real or fictitious; and whether the sale of the railroad shares was made without authority. These were the only issues that the Judge could rightfully try and determine. He determined them both in favor of the defendants, and yet rendered a judgment for the plaintiff. We are compelled to think, and it is our duty to say, that the proceeding was anomalous and without precedent or warrant; that there is no rule of the common law, and no provision of the Code by which it could be justified, and that the judgment so rendered is, on the very face of the record, erroneous and void.

If it be said that when an answer is interposed, the Court, under section 275 of the Code, may grant to the plaintiff a relief different from that demanded by his complaint; the section itself gives the reply by declaring that the relief so granted must be “consistent with the case made by the complaint, and embraced within the issue.” As the facts upon which the Court below founded its decision were proved upon the trial, it has been alleged that the Court, by virtue of the powers given by section 173 of the Code, might order the pleadings, both complaint and answer, to be so amended as to conform them to the facts proved. Whether sitting as an Appellate Court, we have any power to direct such an amendment is a question it is unnecessary to discuss, since it so happens that the words of the section again furnish a conclusive reply to the argument. They furnish that reply by limiting the exercise of the discretionary power of the Court to cases in which the amendment “ does not change substantially the claim or defense.” The change that would here be made by such an amendment of the pleadings as would be requisite to sustain the judgment would not merely be substantial but absolute and entire.

We are not aware that there are any other provisions in the Code that may possibly be thought to have a bearing upon the question we are considering. If there are any, we have been unable to discover them.

Again, even upon the supposition that the facts proved, upon the trial entitled the plaintiff to a recovery of the sum for which the judgment was rendered, and that such a recovery might be had even under the pleadings as they stand, still when it was rendered certain by the proofs that this was the only relief to which the plaintiff could be entitled, it seems to us very doubtful whether the jurisdiction of a Judge sitting without a jury, in a case in which a trial by jury had not been waived in the mode provided by the Code, did not cease, so that his power to render a judgment, unless by the express consent of the parties, was at an end. The suit in its nature and from the frame of the complaint was plainly an equity suit, and as such was properly triable by the Court alone, and such was evidently the understanding of the counsel and the Court, but the decision of the Judge turned this equity suit into an action at law for the recovery of money only, which, unless by the consent of the parties, could only be tried by a jury. His decision turned it into an action to recover damages for the wrongful conversion of personal property; and unless such an action may be tried by a Judge at Special Term, in the mere exercise of his own will, without a jury, the objection to the present judgment, as showing upon the face of the.record an excess of jurisdiction, seems unanswerable. (Code, §§ 253, 254, 266.)

It is not, however, upon this view of the case that we mean to place our decision, since we wholly reject the supposition that, even had a trial by jury been expressly waived, the judgment appealed from could have been rendered under the pleadings and in total disregard of the issues which the pleadings raise. It is upon this ground that we hold that the judgment must be reversed and a new trial be granted.

II. Placing our decision upon this ground, it is unnecessary to discuss at large the second question, namely, whether the proceedings of the defendants in relation to the stocks were not so fully sanctioned by the plaintiff as to preclude him from disputing their legality. Without dwelling upon all the reasons that have satisfied our minds that the defendants acted throughout by his express or implied authority, we shall content ourselves with showing that the learned Judge certainly erred in holding that the plaintiff was not bound by his admission that the account of the defendants was correct, except as to the charge of $150. The reason which the learned Judge assigns for this opinion is, that there was no evidence establishing that he knew at the time— which can only mean at the time he made the admission—of the stock having been parted with, a reason which necessarily implies that had the knowledge of the plaintiff that the defendant had parted with the possession of the Nicaragua shares before the sale of the eighth of April, been proved to the satisfaction of the Judge, he would have held that the plaintiff was bound by the sale, and the defendants entitled to judgment. Yet, unless we are to reject entirely the testimony of the only witness examined upon this subject, and who was unimpeached and uncontradicted, nothing is more certain than that the fact that the defendants, before the sale, had parted with the possession of the stock was known to the plaintiff when he made the admissions that were proved. He knew that the defendants had borrowed money upon the pledge of the stock, and subsequently had parted with its possession. The admissions of the plaintiff, as proved by the witness, were that there was no other error in the account rendered than the charge of $150, which he refused to admit; and that in every other respect the account was right, and the witness swore that he had before informed the plaintiff in reply to his question, what the charge of $150 was for, that it was made for negotiating loans upon the stock. The witness further stated that on the next day, the defendant, A. Lockwood, in reply to the same question, what the charge of $150 was for ? told the plaintiff that it was a commission at the rate of ■§ of one percent for negotiating loans for the extra sixty days that the stock was carried beyond the first agreement; that it was for borrowing money upon the stock for the extra time, and that this was a commission which the plaintiff, when' the credit was extended, had agreed to allow. The plaintiff positively denied that he had agreed to allow the commission that was claimed, but he did not deny that he knew that loans upon the stock were made, and that when the period of credit was extended, it was understood they would be made; nor did he call in question the right of the defendants to part with the possession of the stock for the purpose of procuring them. We, therefore, think that the proof was conclusive to show, nor do we at all doubt that such was the fact, that the plaintiff when he so. fully and distinctly admitted that the charges in the account of the defendants, with a single exception, were correct, possessed the very • knowledge that the learned Judge was of opinion, if proved, would have been fatal to his recovery. We think it was proved and agree in the opinion that it was, in law, a bar to his recovery. As the plaintiff has not appealed from any part of the decision of the Judge, it is unnecessary- to consider the question whether the commission of $150 charged by the defendants, converted the advance they had made for the purchase of the. stock into a usurious loan. But we agree in -the opinion of the learned Judge, that even if the charge was improper, it could not have the effect of tainting with usury the original transaction —the agreement for the purchase of the Kicaragua stock. Whether the charge was properly made, or was sufficiently sustained by evidence upon the trial, are questions upon which we decline to express an opinion, as they may evidently arise in a new action, properly brought by the plaintiff for the recovery of the balance due to him upon the account of the defendants, as rendered. They are not questions that, in our judgment, can properly be decided in the present action.

The judgment appealed from must be reversed, and there must be a new trial, with costs to abide the event.

Ordered accordingly 
      
       At the Special Term of ’May, 1859, the plaintiff applied for leave to file and serve an amended complaint in this action, in order to obviate the difficulties suggested in the foregoing opinion, before a new trial should be had. •The motion was denied by Mr. Justice Wooditofj? before whom the motion was made. (See the opinion reported among the “ Cases of Practice.” Post.)
      
     