Ryder v. Sistare. APPEAL from a judgment of this court sustaining a demurrer to a complaint. 99 The action was brought against defendants, stockbrokers, for damages for a failure to execute plaintiff's orders to buy and sell stock. The complaint alleged that "the plaintiff entered into an agreement with the defendants by which the latter promised and agreed, in consideration of a commission of one-eighth of one per cent, for buying, and a like amount for selling, to buy and sell for the account of the plaintiff, upon her order and direction so to do, any of the stocks which are bought and sold on the New York Stock Exchange; that, pursuant to said agreement, plaintiff "sent and delivered to defendants thirteen separate orders or directions to buy and sell for her account specific numbers of shares of the stock of the Western Union Telegraph Company, same being one of the stocks bought and sold in the New York Stock Exchange, at prices therein designated;" that, "at the times said orders or directions were received by the defendants, same could have been executed by defendants by the exercise of reasonable diligence on their part; but that, “in violation of the agreement aforesaid, the defendants neglected, omitted, failed, and refused to execute the orders and directions aforesaid, to the damage of the plaintiff, four thousand dollars." A demurrer to the complaint, on the ground that it did · not state facts sufficient to constitute a cause of action, was sustained, and judgment was entered thereon for defendants. From the judgment plaintiff appealed. A. Walker Otis, for appellant. Davison & Fischer, for respondents. VAN HOESEN, J.-The complaint does not allege that the defendants agreed to advance the money for the purchase of such stocks as the plaintiff might choose to order, nor does it allege that the defendants agreed to sell stocks that the plaintiff did not possess, or to sell stocks that the plaintiff did not furnish for delivery. In the absence of such averments, it Ryder v. Sistare. was necessary for the plaintiff to allege that she provided the defendants with the means of paying for the stocks that she wished them to buy, and that she placed within their reach the stocks that she instructed them to sell; for, unless they agreed to assume the risk, it was not the duty of the defendants to buy or to sell stocks on the plaintiff's account without being provided with the means of carrying out her orders. There is nothing in the complaint, therefore, to show that the defendants were under any obligation whatever to obey the instructions to buy and to sell that the plaintiff is said to have given (Fowler v. New York Gold Exch. Bank, 67 N. Y. 143). Again, under the allegations of the complaint, nothing more than nominal damages could be recovered, even if it be assumed that the plaintiff has stated a cause of action. No special damages are alleged. There is nothing to show that the stocks that the plaintiff instructed the defendants to buy ever increased in value, or that any change in the market value of the stocks that she instructed them to sell caused her any loss. For aught that is alleged the plaintiff may not have suffered the slightest pecuniary injury from the defendants' neglect to execute her orders. Though this defect is not a good ground for a demurrer, we deem it proper to call attention to it, that the proper allegations may be inserted if the plaintiff desires to amend (Texas R. Co. v. Curry, 64 Tex. 85; Rider v. Pond, 19 N. Y. 262). We think that the judgment should be affirmed, but we see no objection to granting leave to amend. There may be a question as to whether the case is to be governed by Chicago R. Co. v. Dane (43 N. Y. 241), or by the cases cited in Miller v. MacKenzie (95 N. Y. 580, et seq.). I have assumed the agreement sued on is not void for want of mutuality (See also G. N. R. Co. v. Witham, L. R. 9 C. P. 16) LARREMORE, Ch. J., concurred. Judgment affirmed, with costs. Schmidtkunst v. Sutro. CAROLINE SCHMIDTKUNST, as Administratrix, etc., of Paul Schmidtkunst, Deceased, Respondent, against EMANUEL S. SUTRO et al., Appellants. (Decided December 3d, 1888.) The complaint in an action for negligently causing the death of plaintiff's intestate, while in the employ of defendants, alleged that they allowed a step-ladder in their factory to become unsafe; that by reason thereof it gave way and precipitated him to the floor, and that from the injuries so received he died. Held, that a motion to have the complaint made more definite and certain, by specifying in what respect the ladder was unsafe, should be denied. APPEAL from an order of this court denying a motion to require a complaint to be made more definite and certain. The action was brought by plaintiff as administratrix of her deceased husband, to recover damages for his death. The complaint alleged that the decedent, while in the employ of defendants, and in pursuance of their instructions and directions, attempted to adjust certain machinery, and in so doing got upon a step-ladder which was in defendants' factory to be used for that purpose; that defendants had allowed such step-ladder “to become unsafe, and insecure and dangerous, out of order, faulty, and dangerous to life and limb;" that "by reason of the unsafe condition of the said step-ladder aforesaid, the same gave away, and precipitated the said" decedent to the floor, injuring him; and that in consequence of the injures so received, he died. A motion by defendants to require the complaint to be made more definite and certain "by specifying in what respect said ladder was unsafe and not in good condition, and the defects of the same," was denied. From the order denying the motion defendants appealed. H. E. Yonge, for appellants. August P. Wagener, for respondent. Schmidtkunst v. Sutro. VAN HOESEN, J.-The order should be affirmed, with costs. The complaint alleges that the step-ladder was unsafe; that it gave way, and precipitated the plaintiff's intestate to the floor, whereby two of his ribs were broken. The meaning of this allegation is perfectly apparent, and the difficulty that the defendants experience is, not in understanding what they are charged with, but in ascertaining, in advance of the trial, what weak spots in the ladder the plaintiff expects to point out to the jury. It is obvious, therefore, that the allegation is not indefinite or uncertain, and that the application for information as to the defects in the ladder ought not to have been made under section 546 of the Code. If the defendants had applied for a bill of particulars, though their motion would have been made under section 531 (which is the section that applies where a party desires information as to the details of a charge that his adversary has made against him in general terms though in language so intelligible that the accusation is unmistakable), it does not follow that they would have been successful. Where a step-ladder that an employer provides for the use of his servant breaks down; where the servant is thrown to the ground thereby, and is seriously injured; where the step-ladder is in the possession of the employer, and was never seen by the servant before he was told to go upon it; and where the servant has never seen it since the injury, it is not likely that any court would call upon the servant to specify the cause of the collapse of the ladder, under pain of losing compensation for his injuries if he did not in his bill of particulars mention the very defect that, in the opinion of the jury, caused the break down. Again there are cases to which the maxim, res ipsa loquitur, applies, and in such cases the plaintiff is not called on to give particulars, because the explanation of the cause of the accident is then devolved upon the defendant. It might turn out, upon a motion for a bill of particulars, that this case was one of that class. LARREMORE, Ch. J., concurred. Shultz v. Third Avenue R. Co. SIMON SHULTZ, Respondent, against THE THIRD AVENUE RAILROAD COMPANY, Appellant. (Decided December 3d, 1888). In an action against a street car company to recover for personal injuries to plaintiff caused by a fall from a horse car while attempting to alight therefrom, plaintiff's uncorroborated testimony, that the fall was caused by the car suddenly starting while he was in the act of alighting, was contradicted by his account of the accident, made under oath to the company as soon after the accident as he could get to its office, in which he stated that the conductor refused to stop the car for him, whereupon he stepped off, and on which complaint the conductor was immediately discharged; and also by the conductor's written report of the accident, made at the time, and by the testimony of a number of witnesses to the circumstances. Held, that a verdict for plaintiff should be set aside as against the weight of evidence. APPEAL from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial. The facts are stated in the opinion. William N. Cohen, for appellant. Solomon, Kantrowitz, & Esberg, for respondent. LARREMORE, Ch. J.-This action was brought for the recovery of damages for personal injuries sustained by the plaintiff through the alleged negligence of the employés of defendant. A judgment was recovered and entered for $631.30, from which this appeal is taken. Plaintiff's account of the manner in which the accident happened, given on the trial, is as follows: "I was seated in a car I got up to tell the conductor where I wanted to get off; I went to the rear door and opened the door and told the conductor to be kind enough to stop at Spring Street; he said, 'all right, sir'; when I got to Spring Street I told the conductor please to stop there, and he did stop the car at |