The opinion
Barculo, P. J.
The transfer of the stock to the defendant gave him the authority to sell and dispose of it. This right is incidental to the absolute holder of such securities. There can be no doubt that a bona fide purchaser from him would be protected. The defendant, however, agreed that he would give the plaintiff 30 days’ notice before selling the stock, and pay him the balance after satisfying the note, and $20 expenses. This is a *457 valid agreement, which may be enforced between the parties, although it cannot affect the legality of the sale. All that the plaintiff stipulated for in the agreement, was to have the stock bring its full value and be applied in payment of the debt. If the defendant has not sold it in such a manner, and accounted for the proceeds, he is liable therefor upon his contract, and must respond in damages. This is what he has been made to do at the special term, as I understand the decision. To call this a ease of trover and conversion is, in my judgment, a misapplication of terms.
[Kings General Term,
January 3, 1853.
' Baratío, Brown and S.B. Strong, Justices.]
This view of the case also disposes of the other objection. For if this is deemed an action upon contract, the defendant could set off the decree of the surrogate. (Dubois v. Dubois, 6 Cowen, 494.) The judgment must be affirmed.
Brown, J. concurred.
S. B. Strong, J. dissented.
Judgment affirmed.