Summary
In Cooper v. Gossett the plaintiff contended, first, that, the action being upon a promissory note, the mere fact that the stock certificate was not stamped was no defense to the action brought by plaintiff upon a negotiable promissory note.
Summary of this case from Wylie v. AddomsOpinion
March 17, 1932.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Morris E. Gossett, appellant in person.
A. Arthur Klar, for the respondent.
The evidence established a violation by the plaintiff of article 12 of the Tax Law, as amended, and it follows that she was barred from maintaining an action based upon the transfer. The fact that the action was on the note given in consideration of the transfer does not give the plaintiff any greater rights than she would have possessed had the action been brought for part of the purchase price not evidenced by a note. Matter of Wylly (210 F. 954) is distinguishable since section 278 of our Tax Law (as amd. by Laws of 1922, chap. 354) applies only to an action or proceeding in the courts of this State and not to actions or proceedings in the Federal courts. The defendant was at liberty to show that the consideration for the note was the transfer of the stock since section 278 operates only against the transferrer of the stock upon whom the law imposes the duty of paying the tax and affixing the stamp, and not upon the transferee. ( Matter of Borst, 129 Misc. 424; affd., 222 A.D. 707; affd., 248 N.Y. 556; Matter of Shelley, 134 Misc. 265; Hall v. Davis, 95 id. 315.)
Judgment modified by striking out the money award to plaintiff and by dismissing the complaint on the merits, with costs, and as modified affirmed, with twenty-five dollars costs to appellant.
All concur; present, LYDON, FRANKENTHALER and UNTERMYER, JJ.