
    (March 29, 1949.)
    In the Matter of the Application of Leo Green, Respondent. Baltic Shipping Co., Inc., Appellant.
   Per Curiam.

Petitioner’s sole claim made in his verified petition and bill of particulars was that he was the owner of 45 shares of appellant’s stock purchased for $500 cash from his brother Herman shortly before Herman’s death in April, 1936; that his ownership was evidenced by a certificate for 45 shares made out in petitioner’s name in 1936; and that Herman at the same time delivered the certificate to petitioner. At no time in his petition or his own proof on the hearing did petitioner claim he was the owner of certificate No. 7 issued in 1925 for 118 shares, nor did he claim an assignment of 45 out of such 118 shares evidenced by certificate No. 7. That certificate never left the company’s possession and had been marked “ cancelled ” twelve years before this proceeding was started.

Contrary to petitioner’s pleading and proof at the hearing, petitioner on appeal now relies on appellant’s book entries relating to certificate No. 7. On petitioner’s own proof certificate No. 7 was not issued in consideration of any payments, advances or loans that he made to his deceased brother, as petitioner did not even claim to have made such payments prior to April, 1926, whereas certificate No. 7 is dated July 14, 1925.

The official referee’s report (1) is based on a finding regarding the 118 shares at variance with petitioner’s own verified petition, bill of particulars, claim and proof; and (2) is predicated on entries and acts occurring in 1925, over twenty-two years before petitioner made this application. Petitioner’s testimony as to his payment for the 45 shares he claimed to own was contradictory and shifting. In view of petitioner’s own testimony previously allowed in evidence, appellant was wrongfully denied the right to show the basis, chiefly of records and documents, for the claimed cancellation in 1935 of the certificate for 118 shares.

The resettled order appealed from should be reversed, with costs and disbursements to appellant, and the case remanded to Special Term for a rehearing before Special Term.

Peck, P. J., Dore, Cohn, "Van Voorhis and Shientag, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the matter remitted to Special Term for a rehearing before Special Term.  