majority">McAvoy, J.:

Plaintiff and defendant were both customers of a brokerage house known as the firm of Toole, Henry & Co. This firm failed in March, 1919. In December, 1917, the defendant had purchased five United Kingdom of Great Britian and Ireland five and one-half per cent notes of the par value of $1,000 each through his brokers and had left these notes in their possession. The defendant was at the time carrying on a stock account with these brokers which was conducted on marginal operations. During the period, from the purchase of the notes down to their ultimate delivery, defendant was occasionally indebted to the brokers by reason of advances made for his account on speculative or marginal transactions.

In March, 1919, his account was unincumbered by any debt. Fourteen days before the failure of the brokers this plaintiff opened a margin account with the brokers and deposited with them three other United Kingdom notes. He intended, doubtless, to run a marginal business with these brokers, and these notes were deposited with the brokerage firm to protect the proposed account intended to be opened. He gave the brokers the usual authority to pledge in case he became indebted to them, but as a matter of fact the plaintiff never did trade with or become indebted to the brokers from the time of deposit until the time of failure, and the brokers never did, in fact, pledge plaintiff’s notes, but at all times retained the identical notes in their custody. Ten days after plaintiff had deposited his notes, to wit, March 27,1919, and four days before the brokers failed, defendant requested delivery of the five notes which he had purchased in December, 1917. The brokers delivered five United Kingdom notes to the defendant, and of these five, two were the identic notes which *285the plaintiff had deposited with the brokers ten days before. The learned trial court, on stipulated facts, together with testimony of an expert witness as to the custom in respect of the deposit of securities by customers in brokerage houses, found that the plaintiff should recover the value of the notes so delivered to defendant. The plaintiff claims that there was no debt of the brokers to defendant but only a bailment of defendant’s notes with them; that plaintiff’s right to receive his identic notes at all times remained in him; that there never was any acquisition of a right on the part of the brokers to sell, pledge or hypothecate plaintiff’s notes; that the delivery by the brokers to the defendant of plaintiff’s notes constitutes a conversion of property of the plaintiff.

The defendant’s claim is that the duty of the brokers to deliver five United Kingdom notes to him constituted an “ antecedent or pre-existing debt,” within the meaning of section 51 of the Negotiable Instruments Law, and that he is a bona fide holder of the notes. I think defendant’s theory untenable. He was not purchasing negotiable commercial paper in due course for value at the time of the transaction, but was merely receipting for goods purchased theretofore supposedly for his account.

If the goods were not the broker’s to sell and defendant was compelled to return them to the rightful owner, nothing that he did or released would have prevented the right to recredit for the value of the goods so returned or the right to demand another allotment.

The title to the two notes was always in plaintiff; his agreement •with the broker to allow a repledge or sale or substitution was conditional on bis trading and owing money, and since he never ovred, the brokers were never authorized to sell or hypothecate.

Once the notes had become part of collateral for marginal transactions they became fungibles whose identity was lost, and any notes of similar value and tenor could have been returned on payment of the loan.

They would be no longer earmarked and a conversion could not occur by their sale or pledge to another. (Wilson v. Little, 2 N. Y. 447; Horton v. Morgan, 19 id. 172; Graves v. Deterling, 120 id. 457.)

These are well-established canons of the stockbroker and his trader but they have no application to the facts of plaintiff’s and his pledgee’s relation. The judgment should be affirmed, with costs.

Clarice, P. J., Dowling, Smith and Finch, JJ., concur.

Judgment affirmed, with costs.

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