#### Iris C. Ryder, Appellant, *against*William H. M. Sistare *et al.,*Respondents.

(Decided December 3d, 1888).

The complaint in an action against a stockbroker, for damages for the failure of defendant to execute plaintiff’s orders for purchase and sale of stocks, alleged an agreement by defendant, for a commission, to buy and sell for plaintiff on her order, but did not allege that defendant agreed to advance the money for the purcha'se of such stocks as plaintiff might choose, nor that defendant agreed to sell stocks that the plaintiff did not possess, or did not furnish for delivery. *Held,*that in the absence of such averments, plaintiff should have alleged that she provided defendant with the means of paying for the stock she wished to buy, and placed within his reach the stock she wished to sell.

The complaint did not show that stocks plaintiff instructed defendant to buy ever increased in value, or that any change in value of stocks she instructed him to sell caused her any loss. *Held,*that nothing more than nominal damages was recoverable under it.

*91Appeal from a judgment of this court sustaining a demurrer to a complaint.

The action was brought against defendants, stockbrokers, for damages for a failure to execute plaintiff’s orders to buy and sell stock. The complaint alleged that “ the plaintiff entered into an agreement with the defendants by which the latter promised and agreed, in consideration of a commission of one-eighth of one per cent, for buying, and a like amount for selling, to buy and sell for the account of the plaintiff, upon her order and direction so to do, any of the stocks which are bought and sold on the New York Stock Exchange; ” that, pursuant to said agreement, plaintiff “sent and delivered to defendants thirteen separate orders or directions to buy and sell for her account specific numbers of shares of the stock of the Western Union Telegraph Company, same being one of the stocks bought and sold in the New York Stock Exchange, at prices therein designated; ” that, “at the times said orders or directions were received by the defendants, same could have been executed by defendants by the exercise of reasonable diligence on their part; ” but that, “ in violation of the agreement aforesaid, the defendants neglected, omitted, failed, and refused to execute the orders and directions aforesaid, to the damage of the plaintiff, four thousand dollars.”

A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was sustained, and judgment was entered thereon for defendants. From the judgment plaintiff appealed.

*A. Walker*Otis, for appellant.

*Davison*& Fischer, for respondents.

Van Hoesen, J.

The complaint does not allege' that the defendants agreed to advance the money for the purchase of such stocks as the plaintiff might choose to order, nor does it allege that the defendants agreed to sell stocks that the plaintiff did not possess, or to sell stocks that the plaintiff did not furnish for delivery. In the absence of such averments, it *92was necessary for the plaintiff to allege that she provided the defendants with the means of paying for the stocks that she wished them to buy, and that she placed within their reach the stocks that she instructed them to sell; for, unless they agreed to assume the risk, it was not the duty of the defendants to buy or to sell stocks on the plaintiff’s account without being provided with the means of carrying out her orders. There is nothing in the complaint, therefore, to show that the defendants were under any obligation whatever to obey the instructions to buy and to sell that the plaintiff is said to have given *(Fowler*v. *New York Gold Exch.*Bank, 67 N. Y. 143).

Again, under the allegations of the complaint, nothing more than nominal damages could be recovered, even if it be assumed that the plaintiff has stated a cause of action. No special damages are alleged. There is nothing to show that the stocks that the plaintiff instructed the defendants to buy ever increased in value, or that any change in the market value of the stocks that she instructed them to sell caused her any loss. For aught that is alleged the plaintiff may not have suffered the slightest pecuniary injury from the defendants’ neglect to execute her orders. Though this defect is not a good ground for a demurrer, we deem it proper to call attention to it, that the proper allegations may be inserted if the plaintiff desires to amend *(Texas R. Co.*v. Curry, 64 Tex. 85; *Rider*v. *Pond,*19 N. Y. 262).

We think that the judgment should he affirmed, but we see no objection to granting leave to amend. There may be a question as to whether the case is to be governed by *Chicago R. Co.*v. *Dane*(43 N. Y. 241), or by the cases cited in *Miller*v. *MacKenzie*(95 N. Y. 580, *et seq.).*I have assumed the agreement sued on is not void for want of mutuality (See also *G. N. R. Co.*v. *Witham, L. R.*9 C. P. 16)

Larremore, Ch. J., concurred.

Judgment affirmed, with costs.