Opinion
May 14, 1931.
Appeal from the Municipal Court, Borough of Manhattan, Fourth District.
Phillips, Mahoney, Leiboll Fielding [ Warren C. Fielding and Edward H. Beck of counsel], for the appellant.
J.J. A.L. Weiss [ Joseph J. Weiss of counsel], for the respondent.
Plaintiff sued to recover $300 on the theory that his stock was actually sold at 114 1/4 instead of at 111 1/4 as claimed by defendant. The defendant's first notice of sale at the higher price was prima facie evidence of such a sale but was not conclusive. Defendant was entitled to show the actual sale made. Assuming that there was insufficient proof in the record to establish an order by plaintiff to sell "at the market," evidence that there was no sale on the exchange at 114 1/4 after plaintiff's order was given was competent to disprove plaintiff's contention of a sale at such price and it was error to exclude such proof. In addition, as defendant was plaintiff's agent and their contract contemplated a sale on the New York Stock Exchange, proof of defendant's dealings with others on said exchange in carrying out the transaction was competent.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, LEVY, CALLAHAN and PETERS, JJ.