
    EDWIN L. BUTTERFIELD, Plaintiff and Respondent, v. WILLIAM RADDE, Defendant and Appellant.,
    
    I. EVIDENCE, INSUFFICIENT TO WARRANT A VERDICT.
    1. Stockholder, presumption of defendant’s being, from his being a Trustee.
    (a) Not sufficient to warrant a verdict against him, when there is enough proof to overcome it.
    
    1. What proof will overcome it. See note.
    
      Before Monell, Ch. J., and Sedgwick, J.
    
      Decided April 3, 1876.
    Appeal from judgment and order denying a motion for a new trial, a re-argument having been ordered.
    
      The facts appear in the report of the motion for re-argument, and the opinion of Chief Justice Mokell thereon, reported in vol. 40, p. 169.
    
      
      S. D. Seward, attorney, and D. C. Calvin, of counsel for appellant, and C. M. Earl, attorney, and of counsel for respondent.
    
      
      Notes by Reporters.—* This decision neither overrules nor conflicts with the proposition laid down in the bead note to the report of the case in vol. 38, at p. 1. This will" be apparent from a history of the case. The case first came "before the General Term, on appeal by the defendant,'against whom a verdict was rendered, from the judgment entered on such verdict, and the order denying his motion for a new trial.
      The General Term then held (1) that there was conflicting testimony both on the question as to whether defendant was a stockholder, and on that as to (if he was a stockholder) his holding it as collateral security ; that both questions were fairly placed before the jury ; and that there was no ground for disturbing their verdict as not being supported by the evidence. (3) And the trial judge after referring to the law requiring a trustee to be a stockholder, and a by-law of the company providing, “no person shall be a trustee, who is not the owner of at least ten shares in the capital stock of the company,” having charged “ that the legal presumption following these provisions of the statute and by-laws, would be that the defendant was a stockholder. . . the plaintiff does not rest his case on that alone. He has brought what he says is affirmative proof. . . But the presumption itself and the proof given by the plaintiff may be overcome by the testimony on the part of the defendant.” To which charge concerning the presumption that the defendant was a stockholder defendant excepted. Indisposing of this exception, the General Term held as shown in the head note on p. 1, of vol. 38.
      The case involving less than five hundred dollars, defendant moved for leave to go to the Court of Appeals, which was denied (vol. 38, p. 44).
      Another action against another stockholder of the same company, in which the evidence on the above mentioned questions of fact was the same as in this case, having been disposed of in like manner as this one, the defendant therein (over five hundred dollars being involved) appealed to the Court of Appeals, which court reversed the judgment without writing any opinion.
      Thereupon the defendant moved at General Term for a re-argument, which was granted (vol. 40, p. 169).
      On the re-argument the above decision was rendered based on the certificate of the chief justice of the Court of Appeals, referred to in above opinion, which had been obtained subsequent to the decision of the motion for a re-argument.
      
        It will thus be seen that the reversal by the Court of Appeals and the above decision do not proceed on the ground of error in the proposition of law charged on the trial ; but on the ground that conceding the correctness of that proposition, the evidence in the case, notwithstanding such presumption, did not warrant a verdict against the defendant.
      For the better understanding of the decision of the Court of Appeals, it will be well here to give a summary of the evidence (as it is not contained in any report of the case). The plaintiff, to prove tl^e defendant a stockholder, read in evidence the by-laws, and called one of the trustees, who in substance testified that at a meeting of the board of trustees, held May 3, 1872, at which the defendant, Mr. Koehler, Mr. Seward, Mr. Landesman, Mr. Thalmessinger, and himself were present, a certificate for ten shares was delivered to Mr. Radde, in his clerk’s presence, or to his clerk in his presence, he could not tell which; that he supposed the delivery was made by Mr. Landesman as secretary. The defence called the defendant, who swore that no certificate was ever delivered to him or to his clerk in his presence, and that he never received any certificate ; the defendant’s clerk also swore that he was present during the entire meeting of May 3, that no certificate was delivered to him for defendant, that he saw none delivered to defendant, that he never saw any certificate among defendant’s papers. Mr. Seward swore that he was present during the entire meeting, that no certificate was issued at that meeting, that he saw no certificate made out or delivered to defendant ; and lastly Mr. Koehler testified that no certificates were issued at the meeting of May 3, that they were issued afterwards, and he received one, that he acted as treasurer of the company, that a certificate for twenty shares was made out to defendant, but never delivered to him, that he (Koehler) never signed it, as treasurer, and. that it still remains in his (Kqehler’s) possession. There was no subscription list or paper.
      This evidence the Court of Appeals held insufficient to warrant a verdict against the defendant; the chief justice giving the following certificate:
      “ The judgment in this case was reversed upon the ground that there was not sufficient evidence to establish that defendant was a stockholder.
      S. E. Church, C. J.”
    
    
      
       The same decision was made in the case of Elisha G. Selchow v. William Radde, argued with the above case.
    
   Per Curiam.

The chief justice of the court of appeals has made a memorandum, that the judgment in Mallery v. Radde was reversed, upon the ground, that there was not sufficient evidence to establish that the defendant was a stockholder. The defect of evidence, in that case, exists in the two present cases. For that reason, the judgments in these cases should be reversed, with costs to appellant to abide event, and a new trial ordered.  