I dissent from the views of the court which are set forth in the majority opinion.
We should not overlook the fact that on November fifteenth the attorneys for the defendants replied to plaintiff’s communications which were dated October 25, 1929, and November 8, 1929, and in a letter dated November 29, 1929, wrote as follows:
“ November 29th, 1929.
“ Taylor, Blanc, Carrón & Marsh, Esqs.,
“ 43 Exchange Place,
“New York City.
“Dear Sirs: The present will acknowledge receipt of your letter of November 21st, 1929, relative to the claim of Miss Beatrice Sokol against Messrs. Harde & Sharp, which indicates that she now claims that the order for 100 shares of Montgomery Ward was given, but given contingently upon the sale of certain stock of the Radio Corporation.
“ Our investigation into the facts indicates that your client definitely gave orders for the purchase of 100 shares of Montgomery Ward and subsequently confirmed the purchase. As suggested in your letter of October 25th, 1929, will you please have your client make arrangements to take up all of the stock held by Harde & Sharp and close her account.
“ As her account is very much under-margined at the present time and has been for over a month, Harde & Sharp will be compelled to take steps for their protection by selling out the account unless it is promptly margined or taken up by Miss Sokol.
“ Very truly yours,
“ CUTTING, PHILLIPS & HALL.
“ WBH:KL.”
It will be noted that the position taken by the attorneys in their letter of November twenty-ninth is entirely different from that which is to be found in the communication sent by the defendants to plaintiff on November thirtieth wherein the Montgomery Ward stock is referred to with the statement ‘(we are not carrying this stock in your account.” In subsequent communications, however, the defendants reversed their position, and maintained that the pinchase was authorized. Upon the trial it was in effect conceded that an error was made.
It would have been a useless formality for the plaintiff to have made a cash tender of the amoimt due under the circumstances, *199since the defendants claimed a brokers’ lien on the entire account including the Montgomery Ward stock.
I believe a question of fact was presented for the determination of the jury, and, consequently, I vote to affirm.
Judgment reversed, with costs, the complaint dismissed and judgment directed on the counterclaim for the amount prayed for, with costs.