Opinion
July 5, 1967
Judgment of the Supreme Court, Richmond County, dated January 4, 1967, reversed, on the law and the facts and in the exercise of discretion, and new trial granted, with costs to abide the event. These consolidated actions involve conflicting claims to the ownership of nine certificates of stock of the corporate defendants. The rival claimants are Robert H. Vanderbilt (hereinafter referred to as the husband) and Henrietta Vanderbilt (hereinafter referred to as the wife), who divorced the husband in Richmond County in 1959. In Action No. 1, the husband seeks to recover possession of the stock certificates from the wife and she counterclaims to compel him to indorse them over to her. In Action No. 2, the wife seeks to compel the corporate defendants to transfer the stock to her on their books. In substance, the husband testified that between 1940 and 1954, as the certificates were issued to him, he entrusted them to the wife for safekeeping and that she wrongfully withheld them from him. The wife testified that he unconditionally gave her seven of the certificates on one occasion in 1950 and the remaining two in 1955. After trial, the jury by their special verdict accepted the wife's version, and the judgment appealed from, in effect, adjudges that the wife has title to the nine certificates in suit. In our opinion the verdict was against the weight of the credible evidence, particularly in view of affidavits submitted by the wife and her attorney in 1958 in the divorce action. In those affidavits, it was unequivocally stated that the husband owned one third of the stock of the defendant corporations and that the owners of the balance were his brother and his uncle. Under such circumstances, while the wife was not estopped as a matter of law by the statements in her affidavits from taking a contrary position in these actions, we believe that great weight must be given her admissions (cf. Dodge v. Richmond, 10 A.D.2d 4, affd. 8 N.Y.2d 829). We are also of the opinion that the husband was deprived of a fair trial by the prejudicial conduct of the wife's counsel in repeatedly questioning the husband as to his alleged misconduct with other women and mistreatment of the wife, despite denials by the husband, and then seeking to introduce evidence to contradict those denials (cf. Potter v. Browne, 197 N.Y. 288, 293; People v. McCormick, 303 N.Y. 403; People v. Duncan, 13 N.Y.2d 37, 41-42); and by referring to such acts of misconduct and mistreatment, both in his opening to the jury and in summation (cf. Diaz v. Williams, 22 A.D.2d 873; Deutsch v. Doctors Hosp. 26 A.D.2d 520). Since a new trial will be required, we note, with respect to the defenses of the Statute of Limitations pleaded in the answers to both actions and in the reply to the counterclaim in Action No. 1, that it is our opinion that each of the alleged causes of action accrued when the party alleging the cause of action learned that the other (individual) party claimed ownership of the stock certificates in dispute (cf. Titus v. Wallick, 222 App. Div. 17, 19; Saldi v. Saldi, 32 Misc.2d 516, 517). Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.