Opinion
November, 1930.
Order denying motion made by defendants for judgment on the pleadings reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In this action plaintiff seeks to recover damages resulting from the conversion by the defendants of the plaintiff's stock. The relationship between the plaintiff and the defendants, stockbrokers, was that of pledgor and pledgee and a tender of the purchase price is an essential allegation of the complaint. ( Strickland v. Magoun, 119 App. Div. 113; affd., 190 N.Y. 545; Rogers v. Thomson, 215 App. Div. 541; Ketcham v. Provost, 156 id. 477; affd., 215 N.Y. 631; Thompson v. St. Nicholas Nat. Bank, 113 id. 325; Matter of Mercantile Trust Co., 210 id. 83.) Such tender is not alleged in the complaint, but, to the contrary, plaintiff advises us that he does not claim it to have been made, and that the pleadings show a waiver of tender on the part of the defendants and a willingness, ability and readiness on the part of plaintiff to perform. There is no allegation of waiver of tender or facts from which such an inference can be drawn. Willingness, ability and readiness on the part of plaintiff in such an action as this are insufficient. To establish his right to the stock he should have paid for it or tendered payment to the defendants. Young, Hagarty, Carswell and Tompkins, JJ., concur; Lazansky, P.J., takes no part.