There is no need to discuss right and wrong here because the situation is extremely simple. Neither party behaved in any way as to warrant the exaction of a penalty or the granting of a windfall. It was perfectly normal for the broker to wait over the summer for delivery when the customer promised that a search in Florida would bring forth the stock.
The broker was an agent throughout, and this is confirmed in that, if the stock had been bought in at a loss, the broker would have looked to the customer for the difference. Only if the customer’s offense was so heinous that the court in good conscience would not countenance it, could the result be other than that the plaintiff recover judgment.
Nunez, Murphy and Capozzoli, JJ., concur with McGivern, J. P.; Kupferman, J., concurs in an opinion.
Order, Appellate Term of the Supreme Court, First Department, entered on May 17,1971, and judgment of the Civil Court, New York County, entered on January 14, 1971, unanimously reversed, on the law, with $50 costs and disbursements of this appeal to appellant, the judgment of Civil Court vacated, and judgment entered in favor of plaintiff-appellant, with costs, for the sum standing to her credit, i.e., $4,819.50.