
    William L. Andrews, App’lt, v. Richard W. G. Welling, as Assignee, et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    
    Trusts—Identification.
    Where, in addition to the admission, on the record, of the original purchase of the specific bonds by plaintiff, testimony of the plaintiff and the defendant assignee, which is entirely uncontradicted, is clearly sufficient to identify the bonds as the property of the plaintiff, and an indorsement in the handwriting of the assignor, found on the envelope containing the bonds, states that they are the property of the plaintiff, the evidence is. sufficient to identify, in the hands of the assignee for the benefit of creditors, property alleged to have been held in trust by the assignor for the plaintiff.
    Appeal from a judgment, dismissing the complaint.
    
      Alfred J. Taylor, for app’lt; John L. Wilkie, for resp’t.
   O’Brien, J.

This action was brought to recover possession of two bonds of $1,000 each of the Land & River Improvement Company. Among other property which came into the possession of the defendant as assignee were the two bonds in question, against which a claim was asserted by the plaintiff and the defendant Williams. Upon the reference the latter presented no proof to sustain her claim, and, not having appealed, she may be regarded as no longer a claimant. As to plaintiff’s claim, it appears that he purchased these bonds, which were numbered respectively 1,046 and 824, of Weeks & Co., brokers ; the former bond being paid for and delivered to plaintiff February 13, 1891, and the latter on March 18, 1892. In addition to these, the plaintiff from time to time had purchased ofher bonds of Weeks & Co., and about April 7, 1893, he delivered ten bonds so purchased, including the two in dispute, to Francis H. Weeks, an attorney, for sale. Bight were sold, and the proceeds accounted for by Weeks to plaintiff, and the remaining two of the ten left for sale were put in an envelope, and marked in the handwriting of Weeks as follows: “$2,000 Land & River Improvement Company bonds, property William L. Andrews, 16 Bast 38th Street. ” Francis H. Weeks made a general assignment on the 29th day of April, 1893, for the benefit of his creditors, and the property and securities belonging to-Weeks, and the property and securities that he held in trust or as agent, were in separate packages. The assignee testified :

“ When Mr. Weeks delivered the assignment to me, he handed to me two packages of papers, one of which- he said, as near as he could tell, contained his personal property, assets ; and the other of which, * * * as far as he knew, contained trust property, —that is, property he held in trust. Mr. Weeks assumed to assign to me the property represented by the papers in the first package. These bonds which are the subject of this litigation were in the second package.”

And in this second package of trust property was contained the envelope marked in the manner already stated in the handwriting of Weeks.

Upon the record we find the following admission:

“ It is admitted by all parties that the two bonds in suit were delivered by the firm of Weeks & Co., brokers, at 18 Wall street, to William L. Andrews, plaintiff herein; on February 13, 1891. No. 1,046, and on March 18, 1892, bond No. 824.”

It is not claimed that the plaintiff was indebted to Weeks, nolis there any contridiction of the testimony that the bonds were delivered by plaintiff to Weeks as his agent to sell. The referee, because in one or two instances it was shown that Weeks had incorrectly designated the owners of some of the securities which he turned over to the assignee, concluded that he was hot bound to determine the question in plaintiff’s favor, and upon the ground that there was not sufficient identification of the bonds as plaintiff’s he dismissed the complaint. In this, we think, the referee was clearly in error. Apart from the admission on the record of the original purchase of these specific bonds by plaintiff, we have the testimony of the plaintiff and of the defendant assignee, which is entirely uncontradicted, and clearly sufficient to identify the bonds as the property of the plaintiff; and, in addition, we have the indorsement in the handwriting of Weeks, found on the envelope containing the bonds, which states that they are the property of the plaintiff. Upon such evidence there is not even room for discussion, as under the authority of Govin v. De Miranda, 140 N. Y. 474; 55 St. Rep. 837, the plaintiff was entitled to judgment. Though in some respects like that case, the one at bar is stronger in favor of plaintiff. In the ease cited, after the death of the testator, there was found in a box in a safe at his office a sealed envelope, with the following indorsement thereon in Spanish :

“ A declaration in favor of Emilia, .Felix, Guellermina Govin, and Luz Diaz y Sanchez, who lived in 147 Bast 37th Street.”

In the enevlope was a paper, which contained the following, among other declarations:

“ There is, besides, in my safe, a parcel containing $29,000 in bonds of the Iowa Division Railroad, and out of them $10,000 belong to Luz Diaz y Sunchez, mother of the aforesaid persons, for ■covering a memorandum or note for the same sum subscribed by me ; and the balance belongs to the aforesaid Emilia, Felix, and '(ifuellermina, share and share alike.”

Of the 38 bonds contained in the box, the plaintiffs claimed 19, and it was held that, in the absence of any evidence explaining or contradicting the endorsement on the envelope, it furnished complete proof of ownership ; the judge, in the course of the opinion, saying :

“ The case depends entirely upon the force and effect to be given to that paper as evidence, and we think it shows that nineteen of these bonds belonged to the plaintiffs. • They were found in the safe, and there is the unqualified declaration that they belonged to them. We infer from that language that they came to the ownership of the plaintiffs in some legal way by purchase or gift from some one; and, if there was nothing else in the paper qualifying the declaration, no one would dispute that it furnished absolute evidence of their ownership of the bonds.”

In the case at bar we are not left in doubt as to the manner in which plaintiff acquired the ownership of the bonds, ñoras to how they came to be in the possession of Francis H. Weeks at the date •of his assignment, it clearly appearing that these' specific bonds were .bought and paid for by the plaintiff, and were in his possession until delivered to Weeks for sale with eight other bonds; and, he not having sold them, they remained the property of the plaintiff, and as against the assignee, who succeeds to no other or greater rights than his assignor, the plaintiff should have been awarded the title and possession. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  