Lombardo v. Case

Sutherland, J. It is very clear that the complaint does not state a cause of action independent of the general custom of brokerage alleged in it, for the complaint alleges that the dividend claimed was announced previous to the date of the contract, and by the contract the bearer was entitled to all [97] the dividends declared “during the time,” that is, during “six months from date” of contract. [New York Special Term, November 6, 1865. Now,-1 am of the opinion that the plaintiff would not be permitted on the trial to prove the alleged custom, for the reason that effect could not be given to the custom without making a new contract between the parties. “ Six months from date ” can not, by proof of any custom, be extended or explained to mean or include “ a day or two before date.” Independent of this, it is very clear that the complaint does not state any cause of action. The defendant does not, by the contract, agree to pay the bearer any dividend or dividends, or to collect or receive such dividend or dividends for the bearer. - The contract simply declares, that •“ the bearer is entitled to all the dividends,” &c. There is not an allegation in the complaint going to show that there is any debt or duty on the. part • of the defendant relative to the dividend claimed. It is not alleged that he has received it, or in any way interfered with the plaintiff’s right to it, as the transferee of the stock. The inference from the complaint, and from the contract set forth in it, is, that whatever right the plaintiff has to the dividend, hé has, and was to have, as the transferee of the stock, and as incident of or to the stock. The complaint alleges that the defendant “has never paid or accounted for the said dividend, but is still justly indebted to the plaintiff thereforbut the difficulty with the complaint is, that it does not state facts to show that the defendant is under a legal obligation or duty to pay or account for the dividend, or that he is indebted to the plaintiff therefor. The defendant must have judgment on the demurrer, with costs. Sutherland, Justice.]