
    Francis P. Rawle, Appellant, v. Phil H. Moore, Respondent.
    First Department,
    January 20, 1911.
    Principal and agent-—agreement to indemnify agent repurchasing stocks — pleading—tender or restoration of stock. .
    Where the plaintiff, a stockbroker, "at the instance of the defendant, for whom he sold stock, agreed with the" buyers that lie and the defendant would repurchase it at-par if requested, and the defendant in consideration thereof agreed to hold him harmless and pay the entire amount necessary to repurchase -the stock, the plaintiff, having been compelled to repurchase the stock and suing the defendant for the sum so expended, need not allege a tender of the stock to the defendant nor willingness and ability to restore it. This because the action is not Based upon an express or implied agreement of the defendant to repurchase the stock from the plaintiff, But upon the agreement to save him harmless. " ,
    Appeal by the plaintiff, Francis P. Bawle, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November,. 1916, denying the plaintiff’s motion for judgment on the pleadings.
    
      Harper Sibley, for the appellant.
    
      Samuel S. Watson [ Walter B. Raymond and Victor C. Cormier with him on the brief], for the respondent.
   Lacghlim, J.

The defendant demurred to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action, and the plaintiff moved for judgment on the pleadings pursuant to the provisions of section 547 of the Code-of Civil Procedure.

The plaintiff alleges that he is a broker; that he sold certain shares of capital stock fbr the defendant and, at the request of defendant, as an inducement to them .to buy, he agreed with the purchasers at the request of defendant that he and the defendant would' buy the stock back at par, if so desired by them; that he had no interest in the matter except as a broker, and that .defendr ant agreed, in consideration of plaintiff’s so agreeing with defendant to repurchase the stock that he would hold and save plaintiff harmless and pay the entire amount necessary to repurchase the stock; that thereafter, in fulfillment of his agreement with the purchasers of the stock, plaintiff was obliged to expend the sum of $2,666 in repurchasing the same, and that before doihg so he called upon' the. defendant to repurchase the stock, but the defendant neglected and refused so to do; that defendant has paid plaintiff $566 on account of the transaction, but has failed and refused to pay the balance, being $1,566, together with interest thereon.

Counsel for the respondent endeavors to sustain the order on the theory'that the plaintiff should have alleged a tender of the stock to defendant, and that the tender has been kept good, or readiness,' willingness and ability to restore it. If the action were to recover the purchase price of the stocky as upon a sale thereof, that point would be well taken. The purchasers to whom the stock was sold on condition that the vendors would repurchase it at par could not have maintained an action without tendering the stock, but the broker who took back the stock, pursuant'to his agreement made at the instance of the defendant, is not in the same position. His action is not based on any express or implied agreement on the part of the defendant to repurchase the stock from him, but on the defendant’s agreement to save him harmless. Having been obliged, owing to a breach of that agreement on the part of the defendant, to pay out this money in the performance of his agreement with the purchasers to repurchase the stock, he has a cause of action against the defendant for indemnity. The stock having been repurchased pursuant to the agreement, is deemed held by the plaintiff for the defendant. It is not involved in the action, as the issue is tendered by the plaintiff.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings should he granted, with ten dollars costs, and judgment directed for the plaintiff as prayed for in the complaint, unless the defendant within twenty days pays the costs of the appeal and of the motion and answers the complaint.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and judgment ordered for plaintiff, unless defendant complies with terms stated in opinion. Settle order on notice.  