—I thinkthe allegation in the second paragraph of the complaint admits of the construction that the purchase of the shares by- the defendants, for account of_ the plaintiff, was consummated, and the delivery was to be made by them to the plaintiff within sixty days, if he so chose. Certainly it would admit of proof to that effect.
Presumptively, the very stock thus held ought to have been kept undisposed of for sixty days. If sold, the plaintiff’s security was the defendants’ ability to get and to pay for other shares.
The cases referred to, such as Horton a. Morgan (19 N. Y., 170), are cases of a defence made out to a responsibility for disposing of stock, by showing the actual possession of a similar number of shares at all times when a demand could have been made. The facts made out a sufficient exemption from an apparent liability.
So the allegation of a sale may well imply a perfected sale by delivery of what was possessed ; and the allegation is, that this was against express instructions.
Thus, it seems to me, the case is one of an. agent, or rather a pawnee, holding specific property for a principal, partly paid for by such principal, having, ostensible authority to sell it, and & selling it contrary to orders, and before the period for. reclaiming it has expired.
It seems to me that a cause of action is made out.
The judgment must be reversed; and judgment for plaintiff on demurrer, without costs of the appeal, but with costs of the demurrer and proceedings thereon at special term, with leave to defendants to withdraw demurrer, and answer within twenty days, on payment of the costs of the demurrer and proceedings thereon at special term.