plain that, if Chapman repossesses himself of the piano, he does thereby rescind the sale, for, in that event, it is provided that: "All payments heretofore made on this agreement shall be considered as made to said Chapman for the use of said instrument and not on account of purchase thereof, and in case of repossession by E. J. Chapman, I hereby. waive all claims of every name and nature." The contract does not contemplate, nor is any right given to Chapman upon repossessing himself of the piano to continue to hold it as security for the purchase price, nor does the contract give to the Fowleys in that case any right thereafter to tender the balance of the purchase price and retake the piano. All their claim or right to purchase is then expressly waived. In this respect the contract differs from those in the cases upon which defendant's counsel relies. The proper and necessary construction of the contract is that Chapman had the option of treating the transaction as a sale of the piano or not, as he should elect. He could not elect that it should be both. If he elected to repossess himself of the piano, he could not thereafter treat it as a sale or hold the Fowleys liable for further installments of the purchase price. Conversely, if he elected to treat it as a sale and to hold the Fowleys liable for the whole purchase price by an action at law, then he waived the other option, to be exercised only in case he elected there should be no sale. That bringing an action for the purchase price is conclusive election to waive the title and any right to reclaim possession of the piano. was decided in this department in the case of Orcutt v. Rickenbrodt, 42 App. Div. 238, 59 N. Y. Supp. 1008, and the authority of that case has not been anywhere overthrown. There are numerous other decisions to the same effect, and such as appear to the contrary will, upon examination, be found to rest upon a different form of contract or to be otherwise distinguishable. The same rule prevails in other jurisdictions. Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L. R. A. (N. S.) 144; Whitney v. Abbott, 191 Mass. 59, 77 N. E. 521. But, if the rule were otherwise, the defendant here is not in a position to so assert, because he alleged in his complaint in the Municipal Court action that he had sold and delivered this piano to the Fowleys, and as soon as he obtained judgment he directed the officer to levy upon this piano as the property of the Fowleys. These proceedings are plainly inconsistent with that assumed by him upon this trial. The case in this respect is analogous to Kirk v. Crystal, 118 App. Div. 32, 103 N. Y. Supp. 17, affirmed 193 N. Y. 622, 86 N. E. 1126, where it was held that the vendor of a steamheating plant on a conditional sale reserving the title filed a notice of mechanic's lien against the real property in which the heating plant. was installed; that the filing of such notice was the assertion of a claim irreconcilable and inconsistent with the claim that the title to the heating plant still remained in him and was an election of remedies. by which he was conclusively bound. The second point made upon this motion is that the verdict of the jury is contrary to and against the weight of the evidence upon the question as to whether the bill of sale of the piano from the Fowleys to the plaintiff was made for the purpose and with intent to hinder, delay, and defraud creditors, particularly the defendant Chapman. No complaint is made on this motion of the manner in which this question was left to the jury, but the argument presented is that because plaintiff was fully acquainted with the circumstances under which the Fowleys had acquired the piano, with the form of the contract of purchase, and with the fact that no payments had been made and that suit, was pending against them for the purchase price, and because plaintiff is the mother of Mrs. Fowley, the jury should have found an intent to hinder and delay or defraud defendant. No doubt the evidence would have justified a verdict to that effect; but the question was one of intent, and it cannot be said as matter of law that plaintiff purchased the piano with such an intent. The fact that she paid her daughter $100 for the piano was clearly proved, and, as its value upon this trial was conceded to be only $85, the price paid was not evidence of a fraudulent intent. I cannot say that the verdict is contrary to the evidence on this question. As the piano stood in a room of the dwelling occupied in common by plaintiff and the Fowleys, no formal act was necessary to transfer possession from the Fowleys to plaintiff. Possession followed the legal title, without any formal act of delivery. I find no ground for disturbing the verdict, and deny the motion, with $10 costs. MCCLARTY v. GIROUX et al. (Supreme Court, Appellate Division, First Department. February 17, 1911.) DISCOVERY (§ 38*)-EXAMINATION OF PLAINTIFF BEFORE TRIAL-Purpose. Defendant is not entitled to an examination of plaintiff before trial, what he seeks being to examine plaintiff on the matters he will have to prove before he can establish any cause of action; that is, to obtain plaintiff's story in advance, and not to elicit evidence in support of his own case. [Ed. Note.-For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. § 38.*] Appeal from Special Term, New York County. Action by Clint C. McClarty against Eugene L. Giroux and another. From an order denying a motion to vacate an order for examination of plaintiff before trial, he appeals. Reversed, and motion granted. Argued before INGRAHAM, P. J., and LAUGHLIN, ČLARKE, MILLER, and DOWLING, JJ. Edward L. Blackman, for appellant. DOWLING, J. This is an appeal from an order denying a motion to vacate an order for the examination of the plaintiff before trial. The action is brought to recover the sum of $35,000 for services alleged to have been rendered by plaintiff in procuring purchasers for stock in a corporation. The answer of the defendant Giroux contains a general denial of the allegations of the complaint, and by way of a separate defense sets up the statute of limitations. The affidavit upon which the order for the examination of plaintiff was obtained shows that the sole purpose of the defendant Giroux is, in effect, to crossexamine the plaintiff upon the matters which he will be compelled to prove before he can establish any cause of action. As he puts it, it is necessary for him to examine the plaintiff before trial, "to determine. upon what facts, if any, the plaintiff bases his claim," and in order. that he may not "be obliged to go blindfolded into the trial of the action, in complete ignorance of the details of plaintiff's claim, or of any of the facts upon which it is based." The order of examination in this case comes clearly within the class in which, under the rule laid down in Lawson v. Hotchkiss, 140 App. Div. 297, 125 N. Y. Supp. 261, it was improper to grant such an order: "It is apparent from this affidavit that it is not desired to take the plaintiff's examination in order to establish any fact which the defendant will be called upon to affirmatively establish as a part of his case. As has been said, the answer puts in issue the plaintiff's allegations as to her interest in the policy, and thus casts upon her the burden of proving those allegations. What is evidently desired is to submit her to a cross-examination, in advance of the trial, as to evidence which it is assumed she will give upon the trial. Thus the purpose is, if possible, to break down in advance the plaintiff's evidence. It is obvious that such an examination may have a wide range; for it will not be limited, as cross-examination usually is, by what has been testified to on the direct examination. In other words, what the defendant seeks is to obtain the plaintiff's story in advance, and not to elicit evidence in supporting his own case." Neither the necessity nor materiality of the examination of plaintiff are shown by the recital of any appropriate facts and circumstances, and the examination was unwarranted. Oakes v. Star Co., 119 App. Div. 358, 104 N. Y. Supp. 244; Hartog v. Richmond Cedar Works, 124 App. Div. 627, 109 N. Y. Supp. 113. The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion to vacate the order for plaintiff's examination granted, with $10 costs. All concur. MOORE V. RODEWALD et al. (Supreme Court, Appellate Division, First Department. February 17, 1911.) 1. PLEDGES (§ 31*)-BROKERS-MARGINS-SALE--NOTICE. Upon a margin account, where the relation of pledgor and pledgee exists, the sale of securities by brokers without notice to the pledgor of the time and place of sale constitutes a conversion, in the absence of an agreement dispensing therewith. [Ed. Note. For other cases, see Pledges, Cent. Dig. § 86; Dec. Dig. § 31.*] 2. PLEDGES (§ 6*)-BROKERS-MARGINS-NOTICE-LIEN. Where plaintiff intrusted her husband with her securities to use for margins upon his speculative account with defendants, which fact was known to defendants, and the margins were used up and her husband could furnish no more, but plaintiff knew and acquiesced in the specula•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes tion and such use of her securities, the defendants had a valid lien thereon for her husband's indebtedness, which they could satisfy by sale, after notice to her. [Ed. Note. For other cases, see Pledges, Cent. Dig. § 16; Dec. Dig. § 6.*] 3. PLEDGES (§ 36*)-BROKERS-MARGINS-PLEADING-PROOF. In an action against brokers for converting securities belonging to plaintiff, pledged by her husband with her consent for his account, which fact was known to defendants, where plaintiff's cause of action rested solely upon absence of any lien of defendants, and the plaintiff declined to amend her complaint to conform to the proof that no notice had been given her of the sale of the securities, although permitted so to do and never intimated that she had a cause of action for unlawful sale of the securities without such notice, her complaint was properly dismissed. [Ed. Note. For other cases, see Pledges, Cent. Dig. § 93; Dec. Dig. § 36.*] Appeal from Order Entered on Report of Referee. ers. Action by Anna E. Moore against Frederick L. Rodewald and othFrom a judgment for defendants, plaintiff appeals. Affirmed. Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, MILLER, and DOWLING, JJ. G. W. Schurman, for appellant. DOWLING, J. This action is brought to recover the sum of $130,000, as damages claimed to have been sustained by the plaintiff for the conversion by the defendants of securities and bonds belonging to her. It appears that the plaintiff inherited certain property from her father, who was a physician at Hempstead, Long Island. She had been married in 1877 to Henry M. Moore and until then had no knowledge of business matters. Prior to her marriage she had lived with her father at Hempstead, and thereafter she resided at Yonkers and in the city of New York. Her husband had never been engaged in any business, but at one time speculated in stocks through a broker, using the securities belonging to his wife as margin for the account, and had also through her investment of $5,000 in the Yellow Pine Lumber Company secured a position therewith. This company was not successful. On November 12, 1900, Henry M. Moore, opened a speculative account with the defendants, who were stockbrokers, and deposited with them as collateral therefor a certificate for 50 shares of Delaware & Hudson stock owned by Mrs. Moore and standing in her name, the same having been indorsed for transfer by her. At that time he was given by the defendant's manager a form of letter to be signed by plaintiff, which she duly signed and gave to her husband, who delivered the same to defendant's manager on the following day. This letter is as follows: "477 North Broadway, Yonkers, N. Y. "Messrs. J. W. Davis & Co.-Dear Sirs: I hereby authorize Mr. H. M. Moore to use collateral standing in my name as margin. "Yours very truly, "November 13, 1900." Anna E. Moore. The defendants acknowledged the receipt thereof, as follows: "J. W. Davis & Co., 9 Broad Street, New York. "November 14, 1900. "Mrs. Anna E. Moore, Yonkers, N. Y.-Dear Madam: We have received your favor of the 13th inst. authorizing Mr. H. M. Moore to use collateral standing in your name as margin on his account. Thanking you for same, we remain, Yours very truly, J. W. Davis & Co." Thereafter many deposits of stocks and bonds were made with defendants belonging to plaintiff by her husband as collateral for his account, she executing in every case the requisite transfers or powers to enable the same to be transferred. In October, 1903, plaintiff herself opened an account through her husband with the defendants for the purpose of selling certain securities owned by her, which account was kept in the name of "H. M. Moore, Special," and when the purpose sought to be accomplished thereby had been realized the account was duly closed. Mrs. Moore in March, 1904, opened in her own name an account with defendants wherein certain Delaware & Hudson stock and the rights thereunder were deposited. Although the rights. were sold in March, 1904, the account was kept open until January, 1908. In it certain moneys of her own were deposited, which were received outside of any proceeds of stock sales. The plaintiff never personally maintained a speculative account with the defendants. Until November, 1907, H. M. Moore kept his speculative account active, making a profit thereon at the outset on certain transactions, which proceeds in part were deposited in the joint banking account of himself and his wife in the Fifth Avenue Trust Co., upon which account both were authorized to draw checks, and from which moneys were drawn for the purpose of defraying traveling and vacation expenses by himself and wife. There is no question but that plaintiff knew that her stocks and bonds were being deposited with the defendants as security for her husband's account. She knew as well that he was speculating through the defendants, but her contention is that she never knew that her securities were liable to be sold for the husband's debt to defendants, and she thought they were as safe in the defendants' custody as they would have been in her own safe deposit box, where they were originally kept. It affirmatively appears, as well, that she knew what was meant by "margin" upon a broker's account, and was not entirely unversed in the ordinary methods of stockbrokers. It is equally plain upon this record that defendants knew that the securities which were deposited with them by Moore, as security for his account, were the property of his wife, and there is no claim that she ever interfered in any way with her husband's account. As early as March, 1907, from her own testimony, the plaintiff knew that the stock market was in very bad shape, and when her husband told her this, she realized as well that the securities for which she was signing powers of attorney were going to the defendants to protect her husband's account. Before she went to Hot Springs, Va., in that month she told her husband when he asked that she should sign the powers, "that pretty soon every security she had in the world would be with the defendants, and |