Opinion
Argued June 2, 1926
Decided July 9, 1926
Appeal from the Supreme Court, Appellate Division, First Department.
Philip C. Samuels and Max Lazarus for appellant.
Joab H. Banton, District Attorney ( Felix C. Benvenga and William B. Moore of counsel), for respondent.
The elements of proof that are lacking in People v. Ruskay ( 243 N.Y. 58) are present in this case. The defendant having purchased stock for his customer, on the same day sold for his own account, the same kind of stock with intent to trade against the customer's order. The evidence is conclusive that fifty shares were purchased for the customer and fifty shares sold for the house account. The question of intent and purpose appeared from other similar transactions under such circumstances as to make a fair question for the jury of the defendant's intent and purpose, in selling these fifty shares so soon after the purchase for his customer. While the defendant may not have had personal knowledge of the transaction, his employees testified that he had given instructions to keep the purchases and sales even, which meant to buy and sell against customers' orders without authority and in the name of the house. The law is one thing; the evidence to prove its violation is another. The law is the same for the Ruskay case as for this. The evidence to prove the violation that was lacking in the Ruskay case is amply furnished here.
The judgment should be affirmed.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment affirmed.