
    Charles D. Ingersoll and George Holmes, as Executors of and Trustees under the Last Will and Testament of Delia A. Blanchard, Deceased, Appellants, v. James W. Cunningham and George Tracy Rogers, Respondents, Impleaded with Robert Weld.
    
      Appeal on exceptions contained in the judgment roll — assumption by the Appellate Division as to evidence in support of fact's not found, in the absence of a case — action to rescind a transfer of securities induced by fraud—proper judgment against innocent defendants who have made advances on the securities — costs, where no tender of such advances has been made.
    
    On an appeal from a judgment entered after trial at Special Term, which appeal, on account of the absence of a case made and settled, does not present the evidence for review, but only the exceptions contained in the judgment roll, the Appellate Division may not assume that the evidence would have warranted any finding that would tend to support the judgment other than those actually made.
    In an action brought against James W. Cunningham and George Tracy Rogers, stockbrokers, and Robert Weld, to set aside a transfer of real and personal property made by the plaintiffs’ testatrix to Weld, on the ground that it was procured by fraud and undue influence, and to obtain a reconveyance of such real and personal property and an accounting, the court found that the transfer was procured by fraud and undue influence exerted by Weld, but that Cunningham and Rogers were not guilty of fraud and had no knowledge of the fraud perpetrated by Weld. It also found that the transfer included a quantity of securities held by Cunningham and Rogers and upon which they had a lien for advances made for the account of the testatrix, but did not •determine the amount of such advances. The court awarded judgment in favor of the plaintiffs against Weld for the value of the property held by Cunningham and Rógers and for the reconveyance of the other property included in the transfer, but dismissed the complaint as against Cunningham and Rogers.
    
      Held, that, upon the findings, the plaintiffs were entitled to a judgment against Cunningham and Rogers adjudging that upon payment of the advances made <by them'upon the securities which they held, such securities should be reconveyed to the plaintiffs, and that upon the failure to make the reconveyance, a personal judgment should be entered against Cunningham and Rogers for the value of such securities less the amount of the advances;
    That, as the plaintiffs did not allege a tender of the amount of the advances, they were not entitled to recover from Cunningham and Rogers the costs of the action other than the costs of the appeal from the judgment dismissing the complaint as to those defendants.
    Appeal by the plaintiffs, Charles D. Ingersoll and another, as executors of and trustees under the last will and testament of Delia A. Blanchard, deceased, from so much of a' judgment of the Supreme Court in favor of the defendants, James W. Cunningham and another, entered in the office of the clerk of the county of New York on the 6th day of April, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, as dismisses the.complaint as to such defendants.
    
      Albert Stickney, for the appellants.
    
      Duncan Edwards, for the respondents.
   Laughlin, J.:

The evidence is not presented for review ás no case was made or settled. The appeal, therefore, merely presents the exceptions contained in the judgment roll. The appellants excepted to the.conclusions of law relating to the right of the respondents to have the complaint dismissed as not warranted by the facts found. .The precise point presented by the appeal is whether that part of the judgment from which the appeal is taken is warranted by the facts found by the trial court. The learned counsel for the appellants correctly states the rule that, on the review of this question, it may not be assumed that the evidence would have warranted any finding that would tend to support the judgment other than those actually made. (Rochester Lantern Co. v. S. & P. P. Co., 135 N. Y. 209; Delaney v. Valentine, 11 App. Div. 316.)

The action is brought to set aside a transfer of real and'personal property upon the ground that the execution of the same was induced by fraud and undue influence, and to require a reconveyance thereof and an accounting. The instrument, the execution of which is claimed to have been brought about by fraud and undue influence, was in the form of a deed conveying real estate and transa ferring personal property from the plaintiffs’ testatrix to the defendant Weld. It was "executed on the 20th day of January, 1903. The respondents were stockbrokers and Weld was in their employ as a clerk from the 23d day of December, 1902. Prior to that time he had enjoyed the confidence and trust of the testatrix and had been intrusted by her with the management and control of her stocks, bonds and other securities. The testatrix at the instance of Weld had stock dealings with the respondents as brokers from the 12th day of November, 1901, long prior to his entering their employ. Some of these accounts were in the names of Weld and the testatrix, and others were in her name alone. At the time of the alleged fraudulent transfer the respondents held stocks of great value owned by the testatrix, which were included in the transfer to Weld. The court found that the execution of the conveyance and transfer was procured by fraud and undue influence exerted by the defendant Weld, but that the respondents were not guilty of fraud and had no knowledge of the fraud perpetrated by Weld. The court also found that the stocks, bonds and other securities of the testatrix held by the respondents- at the time of the fraudulent transfer and included therein were of the value of $128,667.20, over and above the advances made by them on her account; and that they had made certain advances on her account which they were entitled to charge against the value of this property, but the amount of such advances is not found. The court awarded judgment in favor of the plaintifís against Weld for the reconveyance of certain other property and for the value of this property which was held by the respondents and dismissed the complaint as against the respondents as already stated. The appellants contend that they were also entitled to a judgment against the respondents for the value of the property or its return. Upon the findings, which exonerate the respondents from any charge of fraud, the appellants were not entitled to a personal judgment against them, but only to the return of the property and a personal judgment in the event of their failure to comply with the decree. In other words, the right of the appellants against the respondents upon these findings, in addition to having them concluded by the judgment annulling the transfer, is a right to redeem the securities, and as to them the action may be treated as for such redemption. If the court had found the amount of the li.en of the respondents upon the securities it could have decreed that, upon tender of the amount of the lien, they be required to deliver the property to the appellants, and in the event of their failure so to do, that the appellants recover a personal judgment for the value thereof. Weld was a necessary party to the suit in equity to set aside the transfer under which the respondents claim the right to hold the stock for his account and for the redemption thereof, because without his presence the controversy could not be determined. The appellants did not, however,, allege a tender of the amount of the respondents’ lien, and, therefore, they are not entitled to recover costs of the action aside from the costs of the appeal, but it being a suit in equity the amount of the lien of the respondents-should be determined and the whole controversy decided in this action.

We think, therefore, that the judgment, in so far as it is appealed from, should be reversed, with costs to appellants, and that upon the findings of the trial court the appellants are entitled to an interlocutory judgment as against the respondents, adjudging that the plaintiffs are the owners of the securities, but that the respondents have a lien thereon for advances made, and that a referee be appointed to-determine' the amount of the lien, and that upon tender thereof the respondents' be required to deliver the securities to the appellants, and upon their failure so to do the appellants shall have personal judgment for the value thereof, which is stated in the findings, o veían d above the amount of the lien of the respondents.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

■ Judgment, so far as appealed from, reversed, and judgment ordered as stated in opinion.  