Plaintiff as custodian of fifty shares of its own stock sued defendant for its purchase price, $1,950. It claimed to hold as a stockbroker; defendant that it held as a vendor and had failed to make delivery of it according to contract. The jury found no cause of action.
Plaintiff alleged in its complaint that it purchased in the open market for plaintiff’s account the stock of which that in question was a substitute through a consolidation. Defendant admitted this *335in his answer but as the trial proceeded the matter was a subject of proof. When the evidence was closed plaintiff moved for a direction of a verdict, which was denied. The crucial question in the case was whether the plaintiff dealt with the defendant as his broker or his vendor. In his charge to the jury the learned trial court did not leave this question for the jury to pass upon, but told them in substance that if plaintiff had agreed to deliver the stock to the Genesee National Bank, it concededly not having done so, it could not recover; also that if no such agreement of delivery was made, plaintiff must recover. Then the court charged as a matter of law that plaintiff was a broker in the transaction but refused to charge that as a broker it could recover in this action, even though it had failed to deliver as agreed, defendant's* only recourse being a counterclaim for any damages suffered. Plaintiff, if a broker, was a creditor, a pledgee, under such circumstances, not a vendor (Pistell, Deans & Co., Inc., v. Obletz, 232 App. Div. 313), and this refusal to charge was error and requires a new trial. (Capron v. Thompson, 86 N. Y. 418; Minor v. Beveridge, 141 id. 399.)
The judgment and order appealed from should be reversed on the law and a new trial ordered,.with costs to appellant to abide the event.
All concur. Present — Sears, P. J., Edgcomb, Thompson and Crosby, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to appellant to abide the event.