Opinion
November 7, 1913.
Charles E. Kelley, for the appellant.
Dana T. Ackerly [ Edward A. Craighill, Jr., with him on the brief], for the respondent.
On the 8th day of October, 1884, the defendant duly issued and delivered to James B. Hammond certificate No. 160 for three shares of its capital stock. The certificate with an assignment thereof by James B. Hammond to E.E. Garvin Co., indorsed thereon, under date of October 14, 1884, and with another assignment thereof and power of attorney to make the necessary transfer on the books of the company and to surrender the certificate by E.E. Garvin Co. in blank indorsed thereon, under date of June 10, 1889, was delivered to the present plaintiff's predecessor as administrator with the will annexed of John J. Hannahs, deceased, who originally brought the action, by the Mohawk Valley Bank on payment of a loan to the decedent, for which it was held as security. The certificate stood on the books of the defendant in the name of Hammond, and had never been transferred on its books to either of the assignees. The plaintiff's said predecessor on two different occasions caused the certificates to be presented to the defendant with a request that the stock be transferred to his name, as administrator, and that it issue to him as such administrator a new certificate therefor. Each request was refused. Thereafter he brought this action, alleging that the certificate was duly issued to Hammond, and by him duly sold, assigned, transferred and delivered to E.E. Garvin Co., and by that firm duly assigned, transferred and delivered to the decedent. The defendant admitted that the certificate was duly issued to Hammond, but put in issue the allegations concerning the assignments and delivery thereof.
The original plaintiff proved that the signatures of Hammond and of E.E. Garvin Co. and of the witnesses thereto on the assignments were genuine and that after he received the certificate from the Mohawk Bank, the president of the Mercantile Safe Deposit Company, which company held it as security for a loan, filled in the name of the decedent in the blank assignment and power of attorney; but offered no proof of delivery by Hammond to E.E. Garvin Co., or by E.E. Garvin Co. to the decedent.
The defendant alleged as a separate defense that Hammond claimed to be the owner of the stock, and had served upon it written notice to that effect and forbidding it to accept a surrender of the certificate and to issue a new certificate therefor; and on the trial it called Hammond as a witness and attempted to show the transaction between him and E.E. Garvin Co., and that he neither sold nor transferred the certificate to that firm, or to any one else. This evidence was excluded under an objection that the evidence offered was incompetent, irrelevant and immaterial. I am of opinion that the court erred in excluding this evidence.
On the evidence adduced by the plaintiff, the law presumes that the certificate was assigned and delivered by Hammond and by E.E. Garvin Co., and came into the possession of the decedent in due course of business, and that he was the owner thereof notwithstanding the fact that the assignment was in blank ( Holbrook v. N.J. Zinc Co., 57 N.Y. 616; Story v. Bishop, 4 E.D. Smith, 423; Williamson v. Continental Filter Co., 34 App. Div. 630; Ward v. Lewis, 4 Pick. 518; Jones v. N Y Life Ins. Co., 168 Mass. 245; Abb. Tr. Ev. [2d ed.] 7; McNeil v. Tenth Nat. Bank, 46 N.Y. 325; Esmond v. Apgar, 76 id. 359; Leavitt v. Fisher, 4 Duer, 1); but this is not a conclusive presumption, and it was open to the defendant under the denials contained in its answer to overcome the presumption by evidence showing that the certificate was not delivered or not delivered with intent to pass title, for if the certificate was stolen the decedent, even though a purchaser for value, would not obtain good title ( Knox v. Eden Musee Co., 148 N.Y. 441); and if it was delivered as security and the pledgee transferred it without authority, the decedent did not obtain good title unless he purchased it for value without notice. ( McNeil v. Tenth Nat. Bank, supra.)
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.