Opinion
February, 1936.
Present — Young, Carswell, Davis, Adel and Taylor, JJ.
Action by three of the trustees under deeds of trust to hold defendant individually and as cotrustee for loss sustained in connection with certain stock units of Bank of United States, a defunct organization, sold by defendant to the estate. The complaint also alleges that defendant failed to advise the sale of the units at a time when a sum of money could have been realized thereon, and counseled the retention thereof. Such stock thereafter became worthless, to the loss and damage of the trust estate. Judgment dismissing the complaint at the close of the plaintiffs' case modified by striking therefrom the provision for counsel fee in the sum of $2,000 and as so modified unanimously affirmed, with costs to respondent. It was error for the trial court to exclude from evidence the reports of the State Banking Department, contents of which were known to the respondent. They are present as exhibits, marked for identification, and have been examined by the court. It was also error to exclude evidence concerning the defendant's sale of 1,400 of his own units of stock. In view of the testimony of the witnesses as to the contents of the reports and in view of all the other testimony and evidence in the case, we think that these were harmless errors not affecting substantial rights of the plaintiffs. (Civ. Prac. Act, § 106.) Conclusions of law 8 and 9 of plaintiffs' proposed findings are disapproved and struck out.