Opinion
November 26, 1963
Order, entered on May 16, 1963, so far as appealed from, unanimously reversed on the law, the facts being considered, with $20 costs and disbursements to appellant, the motion to confirm the Referee's report to that extent denied, the report rejected, and appellant is directed to move for judgment as to the contents of safe-deposit box number 176. Box 176 was rented by the judgment debtor in his name, care of Lovee Doll Toy Company, Inc., or Irwin Roth, six days after recovery of the judgment against him. All of the money was placed in the box at that time. The face of the envelopes has a notation of the amount of money contained there, with the name and return address of Lovee Doll Toy Company, Inc., imprinted on each envelope. The judgment debtor was neither a stockholder nor officer of the doll company, but allegedly a salesman therefor who had access to the envelopes. He had no authority to sign corporate checks on the corporate account which was at another bank. Since the box was in the name of the judgment debtor, with Roth, his relative, having only a power of attorney, the possession of the contents is presumptive evidence of ownership in the judgment debtor ( Matter of Buckler, 227 App. Div. 146, 149; Matter of Massey, 143 Misc. 794, 795; ef. Matter of Gould, 6 Misc.2d 26). The presumption will yield to proof to the contrary but such proof must be clear and convincing and substantial in nature. The proof offered by the judgment debtor fails to meet the requisite standards. No books or corporate records were offered to support the claim that these were corporate funds. Nor was the accountant for the corporation produced. There was no credible explanation for this unusual method of handling these allegedly corporate funds. The only reasonable conclusion is, and we so find, that title to these funds was in the judgment debtor. Settle order on notice.
Concur — Breitel, J.P., Valente, McNally, Stevens and Steuer, JJ.