Both parties have appealed from the judgment of the Special Term. The plaintiff contends that the judgment in favor of defendant Livingston is for a larger, and the defendant insists that it is for a lesser sum than it should have been. Under the law as pronounced by the Court of Appeals in this case, and in *323accordance with which the case was tried, the court below held that the plaintiff was only entitled to hold the securities to the extent of the right or interest which Barrett had in the same by virtue of his loan to defendant, namely, $3,167.42, with interest thereon from September 15, 1874.
The plaintiff having received the proceeds of the sales of the stock is entitled to retain that amount from such proceeds, but is adjudged to pay the balance thereof to the defendant. The only question in this case is in relation to the amount of the balance of such proceeds. The securities were sold by a broker, pursuant to a stipulation of the parties, in place of a referee as provided in the judgment. Upon such sale the securities brought ninety-five per cent. At the time of the trial they were shown ■to have been worth 107 per cent. We think the plaintiff’ should be held to account for the amount for which the securities actually sold. The sum received by plaintiff was at the rate of ninety-five per cent. The defendant consented to and authorized the sale to be made at the time they were sold,, and consequently at the price that ruled at that time. We can perceive no reason or equity in allowing the defendant any higher price, than that which governed at the time that he consented the sale should be made.
The- defendant by authorizing that the sale be made at that time, himself took the risk of the appreciation or depreciation of the securities. The plaintiff’s interest was fixed at the amount of the Barrett debt, the defendant’s interest fluctuated with the value of the stock. The plaintiff had no interest in such fluctuation so long as the securities would bring the amount of its debt, and ought not to be charged with any greater sum than it actually received at a sale made with the consent of the defendant. If the defendant was not satisfied with that sum, he should have refused to permit the sale to be made at that time. Besides the amount received at the sale, the plaintiff should be charged with any dividends received by it, and with interest at four per cent, pursuant to the stipulation in relation to interest.
The judgment should therefore be modified and reduced by the difference between ninety-five per cent for which the stock was sold and 107 per cent, the value of the same the day of trial.
The plaintiff’ should recover costs of the appeal brought by the *324defendant. Neither party should have costs as against the other in the appeal brought by the plaintiff.
Present — Brady and Potter, JJ.Judgment modified as directed in opinion.