■ The action is to recover' damages for the conversion of the proceeds of the sale of ten shares of the capital stock of the American Locomotive Company preferred, which were owned by the plaintiff and sold by the defendants to the firm of Car-lisle; Mellick & Co. for the sum of $1,056.25 on the 28th day of December, 1910.
On the 27th day of April, 1908, a certificate for ten shares of the preferred stock of the American Locomotive Company was duly issued to one Thomas, and on the thirtieth day of the same month he- sold and assigned the same to the plaintiff and indorsed an assignment thereof to her on the certificate. She *569was acquainted with one Sayles whom she supposed to be in the employ of the defendants, who were conducting a brokerage business under the name of Boyer, Griswold & Co. Sayles was not in fact an employee of the defendants, but he made their office his headquarters, and she had had various communications with him over their telephone. The plaintiff called .at the office of the defendants on the 28th day of'December,-1910, with a view -to having them sell this stock for her, and she delivered the certificate to Sayles in the private office of the defendants. Sayles presented it to one of the defendants, and they sold it to Carlisle, Mellick & Co., but the purchaser desired to have the certificate surrendered and transferred before delivery and the defendants caused it to be presented and surrendered to Harvey Fisk •& Sons, the transfer agents of the American Locomotive Company, whereupon a new certificate was issued in the name of the plaintiff for a like number of shares, and it is to be inferred from the evidence,- which is not entirely clear on the - point, that the defendants caused it to be assigned in blank to the purchaser pursuant to a power of attorney which the plaintiff executed in the office of the defendants on the day in question. It is recited in the power of attorney that the plaintiff sold and delivered the stock to the firm of Carlisle, Mellick & Co.,- and that she constituted one Phelps, who was in the employ of the defendants^ .as her attorney in fact to execute all necessary acts of assignment and transfer to consummate the sale. She did ■ not, however, assign the substituted certificate of stock issued in her name, but it is to be inferred from the evidence that Phelps, acting under the power of attorney, assigned it in her name.
The defendants knew that the stock belonged to the plaintiff, and one of them in the name of the. firm guaranteed her signature to the power of attorney before it was acted upon. At the time in question the defendants were carrying a speculative account in the name of one Scoville, in which Scoville and Sayles were jointly interested. The defendants neither delivered the proceeds of the sale of the stock to the plaintiff, nor to Sayles for her, but by his direction and without authority from her they credited the same on the Scoville account, evidently to margin the same, and charged their commissions *570to said account. With respect to this one of the defendants testified as follows: “I did not make any inquiry of Miss Mitchell why we should do that. I did not inquire of anybody why we should place the proceeds of Miss Mitchell’s certificate to the account of Scoville. I acted on Mr. Sayles’ direction alone. We never knew Miss Mitchell in the case at all, it was entirely Mr. Sayles.” According to the testimony of the plaintiff, the name of the purchasing firm was filled in the power of attorney when she executed it, and the power of attorney was not attached to any certificate of stock; and although that is controverted, the fact must be deemed to have been found in favor of the plaintiff.
At the close of the evidence counsel for plaintiff moved for the direction of a verdict, and counsel for defendants moved for the dismissal of the complaint, and thereupon the court directed the verdict in favor of the plaintiff. The motion for the dismissal of the complaint was not withdrawn, and there was no request in behalf of the defendants for the submission of any question of fact to the jury. In those circumstances, the controverted questions of fact are deemed to have been submitted to the court and to have been found in favor of the plaintiff. (Oliver Refining Co. v. Aspegren, 152 App. Div. 877; Porges v. U. S. Mortgage & Trust Co., 203 N. Y. 181; Sweetland v. Buell, 164 id. 541.) But on any view of this evidence, I am of opinion that the plaintiff was entitled to recover. Through Sayles the defendants acted as her agents in selling the stock, and it was their duty to return the proceeds to her, or, in the most favorable View, to deliver the proceeds to Sayles for her. They were without evidence to show that Sayles was authorized to divert the proceeds to his own use, or to the use of himself and Scoville, and in appropriating the proceeds to the credit of the Scoville account and refusing to pay the same over to plaintiff on demand they were guilty of conversion.
I, therefore, vote for affirmance.
MoLaüghluí, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.