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and 114 New York State Reporter Application by the people, on the relation of Peter J. Garvey, for a writ of mandamus against the Democratic general committee of New York county and others. Application granted.

James, Schell & Elkus, for relator.
Steuer, Hoffman & Wahle, for respondents.

LEVENTRITT, J. This is an application for a peremptory writ of mandamus requiring the respondents to recognize the relator as a member of the Democratic general committee, and to recognize as a member of the executive committee the person duly chosen by the petitioner and his fellow members from the Ninth Assembly District.

The relator and 213 others were, at the primary election of 1902, pursuant to the provisions of the primary election law (Laws 1899, C. 473), elected as delegates to or members of the Democratic general committee. They thus became absolutely entitled to their seats on that committee, and possessed of all the rights and privileges of any other member, incapable of being expelled on any pretext whatever. People ex rel. Coffey v. Democratic Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674. It was conceded on the argument what, under existing law, could not be disputed, that the relator and his associates were members of the general committee, with all the powers pertaining to the office. The contested question was whether the delegates from the Ninth Assembly District were entitled to have one of their number designated as a member of the executive committee. The solution of this question is primarily dependent on the rules and regulations in force at the time the general committee met, on December 30, 1902, for the purpose, among other things, of electing or designating its executive committee. The primary law provides that the rules and regulations adopted by the last preceding general committee shall remain in full force and effect until repealed or amended in accordance with the provisions of the act (section 9, subd. 1). On December 30, 1902, when the first meeting of the general committee, elected that fall, was held, the rules and regulations of the previous year were in force, unrepealed and unamended. Article 5, so far as applicable, provides for :

An executive committee to consist of one member from each assembly district, with the exception of the Thirty-Fourth District, in which district there shall be one member for that portion of the district lying south of the Harlem river, and one member for that portion of the district lying north of the Harlem river, with the chairman and treasurer of the general committee, the chairman of the committee on finance, the chairman of the committee on printing, the chairman of the committee on resolutions and correspondence, the chairman of the committee on election officers, the chairman of the committee on public meetings, and the committee on law and the committee on municipal affairs as ex officio members.

"Yo ex officio member of the executive committee other than the chairman and treasurer of the general committee and the chairman of the committee on finance shall be entitled to a vote.

"The member from each assembly district and from the annexed district shall be chosen by the members of the county committee from each assembly district and annexed district, and their names reported at the first meeting of the county committee. In the event of the members from any district being unable to agree upon a member for the executive committee, the president shall appoint one of the members of the county committee from such district to act as a member of the executive committee."

Therefore, when the general committee met, the rules and regulations guarantied to the voters of the Ninth Assembly District representation through one of their delegates on the executive committee. It appears as a fact, to be accepted as true on this application, that the delegates from that district had chosen and were prepared to report one of their number as a member of that committee.

As a result of the occurrences of the meeting of December 30th, the Ninth Assembly District was deprived of its representation on the executive committee. The sole question here is whether this was according to the rules and regulations. It is not contended that the procedure followed the rules and regulations of the last preceding general committee, as quoted, but it is claimed that, so far as the designation of the executive committee was concerned, these were superseded. The sole method of accomplishing that is given by subdivision 2 of section 9 of the primary election law, which provides :

“The rules and regulations of parties, and of the conventions and committees thereof, shall not be contrary to, or inconsistent with, the provisions of this act, or of any other law, and shall not be amended except upon reasonable notice.”

Without any previous notice, and without being characterized as an amendment to the rules and regulations, there was offered and adopted at the meeting of December 30th a resolution in the following language:

“Resolved, that the districts be called in their order, and that one person from each uncontested district and the annexed district, with the exception of the Thirty-Fourth District, in which district there shall be one person from that portion of the district lying south of the Harlem river, and one person from that portion of the district lying north of the Harlem river, be named to constitute the executive committee for the year 1903."

Immediately prior to the adoption of this resolution a protest had been made against the seating of the delegation from the Ninth District, and their right to membership on the general committee contested. It is perfectly clear from the papers that the resolution was aimed solely at that district. Without attempting, therefore, to pass upon the question whether such a discrimination would in any event be legal, even if accomplished according to the forms of law, it may be said that, extending the principle and the spirit of the Coffey Case to that at bar, such a discrimination would not be countenanced, as in effect being a disfranchisement of the voters of an assembly district acting through their chosen representatives.

Here, however, the forms of law have not been observed. The resolution and the previous rules and regulations are in conflict; and the former was illegal and ineffective because the necessary precedent steps had not been taken. In the absence of any notice, reasonable or otherwise, the rules and regulations could not be amended. It was designed that the primary law "should control not only the choice but the conduct of political committees" (People ex rel. Coffey v. Democratic Committee, 164 N. Y. p. 344, 58 N. E. 127, 51 L. R. A. 674), and its provisions cannot be nullified by the adoption of a resoluand 114 New York State Reporter tion operating by indirection to establish an unauthorized amendment. Terming it a resolution, when, in fact and effect, it was an amendment, does not relieve it of the necessity of having as its support the conditions precedent required by the primary law.

I do not deem it material whether or not the relator voted for this resolution. He asserts that he did not, and no claim is made that he did. It is clear that he voted for no declared amendment of the rules and regulations, and he is therefore entitled to invoke those which were in force at the time his rights were infringed upon.

I allow a peremptory writ of mandamus as a strict legal right. Political committees are under the control and mandate of statutes. They require that in party matters the voters, through their representatives, whether one or two degrees removed, shall express their wishes. If the result is that an undesirable associate is forced on the other members of a committee, or a subcommittee acting for it, the remedy is not in the committee, but in the education of the voters. A principle is involved, and the individual case must not be allowed to sanction a departure bad in precedent, unsound in law, and thoroughly inharmonious with democratic doctrine.

Application granted.

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(Supreme Court, Special Term, New York County. February, 1903.) 1. STOCKBROKER-PURCHASE OF STOCKS—DUTIES.

Where a stockbroker is ordered to purchase certain stocks, it is his duty to purchase promptly, report the transaction to the purchaser, receive the stock, and have the certificates ready for delivery whenever

the purchaser shall pay for them. 2. SAME--Loss—LIABILITY OF PURCHASER.

Where a stockbroker ordered to purchase stocks has rendered the customer an account, but has never purchased the same, he cannot, in a subsequent action for an accounting, charge him with the loss resulting

from the sale. 3. SAME-SALES ON MARGIN.

Where a stockbroker, being ordered to buy certain stocks, buys them on a margin, he cannot sell out the stocks when the margin is exhausted. unless the customer waives tender of them, demand of payment of bal

ance due, and notice of broker's intent to sell. 4. SAME.

Where a stockbroker, being ordered to purchase stocks, never purchases them, the customer is excused from demanding them. Action by Joseph B. C. Tuell against John Overton Paine and others. Judgment for plaintiff.

Henry W. Hardon, for plaintiff.
Charles E. Travis, for defendants.

GILDERSLEEVE, J. This suit arises out of dealings between the plaintiff and the defendants, as, respectively, client and stockbrokers, and the relief sought is the opening and correction of two accounts rendered by the defendants to the plaintiff of stock transactions in April and May, 1901. By these accounts the defendants

brought the plaintiff in debt to them in $13,083.21 through the April transactions and in $3,779.88 through the May transactions. The plaintiff accepted the accounts as correct, and made no objection io them until the following October, when he disaffirmed all purchases of stock specified in the accounts as made for him between April 3 and May 10, 1901, on the ground that defendants never made those purchases, and never received any certificates of the stocks so reported to have been brought for his account. The -question of laches was expressly waived by the defendants on the trial. The defendants claim that they bought the stocks in question through one Hayden, of Philadelphia; that plaintiff did not keep his margin good; and that when it became exhausted they sold the stocks for plaintiff's account at a loss, the amount of which they charged to him in the accounts here in question. Defendants also claim that plaintiff never demanded nor paid for the stocks which were so purchased for them. The complaint charges that the accounts were represented by the defendants to be "just and true," but that they were "false and fraudulent.” In what respect they were fraudulent does not appear from the complaint, except, perhaps, by inference from the charge that they were false. Beyond this there is no evidence of fraud, and I shall not regard the case as proceeding for fraud and deceit, but simply for an accounting, and shall treat the allegation that the accounts were fraudulent as not characterizing the action, but as surplusage only. Conaughty v. Nichols, 42 N. Y. 83; Greentree v. Rosenstock, 61 N. Y. 583; Segelken v. Meyer, 94 N. Y. 473.

The relative rights and duties of the parties to this suit are easily determined by reference to familiar principles of law. It was the defendants' duty, upon receiving plaintiff's order to purchase the stocks for his account, to do so promptly, report the transaction to him, receive the stocks for him and have the certificates ready for delivery to him whenever he should call for them. Markham v. Jaudon, 41 N. Y. 235, 239; Douglas v. Carpenter, 17 App. Div. 329, 45 N. Y. Supp. 219. It is very clear from the evidence in this cause that the defendants never bought for the plaintiff the particular shares in question. The most they, perhaps, did was to give Mr. Hayden an order for them. Hayden never delivered the stock to defendants, and they never demanded it of him. The claim that they had this stock pledged with 99 per cent. of all their stocks, and could, if plaintiff had demanded it, obtained enough for delivery to him from the pledgees, or could have borrowed it, and thus been in a position to make the delivery within what they call a reasonable time, is not satisfactorily proved; but, if it were, it would be of no avail to them. If they really bought the stock for the plaintiff, it was his property from the moment it was purchased, subject, of course, to the payment of the purchase price (Dos P. Stock Br., 119; Markham v. Jaudon, 41 N. Y. 235, 240; Gruman v. Smith, 81 N. Y. 25, 28); and defendants were bound to have it ready for delivery immediately on plaintiff's demand. This is the law, and, as Mr. Burr testified, the custom of brokers. Vír. Burr's language on the stand was: “It [the stock] is held for the customer, and he [the broker) is obliged to deliver the stock to the customer at any time he asks for it. He must have it ready for and 114 New York State Reporter the customer at any moment.” See cases cited, supra. Mr. Paine, one of the defendants, testified that, according to his understanding, the broker has a reasonable time in which to deliver securities to his customer, which he regarded as "about two weeks.” Mr. Paine is not a member of the New York Stock Exchange, while Mr. Burr is; and he is also a member of its board of governors. But if Mr. Paine's view of the time allowed to brokers in which to deliver stock bought for a customer should accord with the custom, it is too unreasonable to obtain the sanction of the law. Evidence was given to show that by the rules of the Stock Exchange Clearing House a broker receives, on settlement, only the difference between the quantity of stock sold and the quantity bought by him; that is, if for several customers he buys 1,000 shares and sells 900 shares, he receives the difference between these two amounts, viz., 100 shares. That custom, however, cannot affect the relations between the broker and his customer. The latter is entitled to the stock which is bought for him, without regard to the rights of other customers. It would be a strange thing if a broker could excuse his failure to deliver to his customer stocks bought for him on the ground that at the clearing house his sales and purchases in a given case balanced each other, and that, therefore, he had no stock for his client. Holding, as I must, on the testimony, that the defendants did not purchase the stocks charged to the plaintiff in their accounts rendered, the plaintiff is not chargeable with any loss on the sale thereof, since the defendants could not sell for plaintiff's account stocks which they never received for him.

The defendants claim that they had the right, under their agreement with the plaintiff, to sell his securities when his margin was exhausted. The terms of this agreement do not appear, and, in the absence of a specific agreement on the part of the plaintiff waiving not only tender of the stock and demand of payment of the amount due the defendants, but also notice of their intention to sell his securities in default of such payment, with the time and place of sale, the sale was wrongful. Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307; Markham v. Jaudon, supra; Stenton v. Jerome, 54 N. Y. 480, 483; Usher v. Van Vranken, 48 App. Div. 416, 63 N. Y. Supp. 104. No question of the plaintiff's duty to demand the stocks in question arises in the case. As the defendants had no stocks to deliver to the plaintiff, no demand by him was necessary.

The injunctive relief asked for in the complaint cannot be granted. It was not shown that defendants were insolvent, nor is this a proper case for that measure of relief. Park v. Musgrave, 2 Thomp. & C. 571. Judgment for the plaintiff that the account be settled in accordance with these views. Let findings or a decision be submitted.

Judgment for plaintiff.

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