Opinion
February 13, 1914.
Robert H. Griffin of counsel [ Wood, Cooke Seitz, attorneys], for the appellant.
Outerbridge Horsey of counsel [ Anderson, Iselin Anderson, attorneys], for the respondent.
Prior to May 1, 1865, the East River Bank, which had been organized under the Laws of the State of New York, was in existence. On the 2d of July, 1864, it issued its certificate of stock No. 394, for twenty-seven shares to James B. Burgess. On May 1, 1865, the said bank duly surrendered its charter and became a banking association under the name of the East River National Bank, pursuant to the statutes of the United States and chapter 97 of the Laws of 1865 of the State of New York.
This action is brought to compel the defendant to issue in place of the certificate for twenty-seven shares of the East River Bank originally issued to said Burgess, which plaintiff has in his possession, a certificate for such number of shares of the East River National Bank as plaintiff may be entitled to under the reorganization, and that the defendant account for and pay to plaintiff all arrears of dividends now remaining unpaid on said twenty-seven shares or on the equivalent thereof in shares of the defendant.
It was admitted upon the trial that upon the conversion of the said State bank into a National bank Burgess, as the holder of twenty-seven shares in the old bank, became entitled to thirty-three shares in the new bank. Upon the trial the plaintiff offered the original certificate of stock of the East River Bank. This bore upon its back an assignment dated the 31st day of October, 1865, bearing the purported signature of James B. Burgess with a seal and the underwriting, "sealed and delivered in the presence of Wm. Highet." No testimony as to the signature of Burgess or the witness Highet was given, but the court received the certificate in evidence over objection and exception.
The plaintiff testified: "My brother gave me this certificate of stock, as a gift. I did not pay any money for it. * * * I think this certificate was given to him by my father. * * * My father said that this certificate was among some papers of my grandfather's. My grandfather's name was Peter Longworth. He died about nineteen years ago. My father is not dead; he lives in New Jersey." He further testified that the name J. Brower Longworth was written by his brother in the blank left for the transferee's name on the assignment on the back of the certificate.
The finding of the learned court, at the request of the plaintiff, though not contained in the decision, that "each and all of the signatures to such certificate of stock and to the transfer and power of attorney endorsed thereon were genuine and bona fide," was without evidence to support it so far as the signature of Burgess and the witness Highet were concerned. While it is the rule that an ancient document is admissible in evidence without direct proof of its execution if it appears to be of the age of at least thirty years, that rule is coupled with a proviso that it be found in the proper custody and is unblemished from alterations and otherwise free from suspicion. (See 17 Cyc. 443, and the authorities there cited, including Clark v. Owens, 18 N.Y. 434.)
The ancient document rule is inapplicable. The certificate offered bore date July 2, 1864 and was issued by a corporation which went out of existence May 1, 1865. The sole testimony in regard to it is that it was found among the papers of plaintiff's grandfather, one Longworth, who died nineteen years before the trial, without a particle of evidence to show any connection between Longworth and Burgess from which it could be even remotely inferred that said document came from the proper custodian thereof. Besides the person alleged to have found it is not produced to testify as to the circumstances surrounding the custodianship or the finding. This, coupled with the fact that it is admitted that for upwards of ten years past neither J. Brower Longworth nor James B. Burgess has been upon the books of the bank as a stockholder thereof, and that it is shown by the books of the bank that Burgess' stock was sold on April 6, 1867, and his account with the bank was closed on May 16, 1867, by crediting the amount of the sale and two dividends on said stock, demonstrates that the admission of said certificate in evidence was error. Without proof of the authenticity of the assignment of said stock, and it not appearing that plaintiff or any of his predecessors in possession were purchasers or holders for value, the bare production of the certificate was insufficient to establish title to the stock.
The judgment appealed from should be affirmed, with costs and disbursements to the respondent, but the eighth of the plaintiff's proposed findings found by the court so far as it finds that the signature to the transfer and power of attorney indorsed on the certificate of stock is genuine and bona fide should be reversed as not supported by the evidence.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and HOTCHKISS, JJ., concurred.
Judgment affirmed, with costs; plaintiff's eighth proposed finding found by the court reversed to extent indicated in opinion as not supported by the evidence. Order to be settled on notice.