
    Thomas Mould, Appellant, v. The Importers and Traders’ National Bank of the City of New York and Others, Respondents.
    
      Broker and client — stock pledged with a broker as collateral, surrendered and a new certificate issued to the broker and by him, pledged to secure an indebtedness— evidence of the identity of the stock — the presentation by the client of his claim in bankruptcy proceedings does not constitute an election — effect, on the right toa dividend in the bankruptcy proceedings, of an action for the stock.
    
    In an action brought to recover a certificate for 100 shares of the preferred stock of the Union Pacific Railroad Company, which had been deposited by the plaintiff with the firm of Hatch & Foote, stockbrokers, as collateral security for moneys advanced by that firm in the purchase of stocks for the plaintiff, it appeared that Hatch & Foote surrendered the original certificate deposited by the plaintiff, and procured a new one to be issued in their names; that thereafter Hatch & Foote borrowed a sum of money from the defendant bank and, as collateral security therefor, deposited with the bank certain securities, among which was a certificate for 100 shares of the preferred stock of the Union Pacific Railroad Company, bearing a different number from that which the plaintiff delivered to Hatch & Foote; that subsequently Hatch & Foote made a general assignment for the benefit of creditors and were adjudged bankrupts.
    It further appeared that, at the time of the failure, Hatch & Foote held three 100-share certificates of the preferred stock of the Union Pacific Railroad Company, one of which belonged to the plaintiff, one to the defendant Robert J. McGay and the other to the defendant Frank B. McGay.
    The plaintiff testified that at or immediately prior to the commencement of the action, the senior member of the firm of Hatch & Foote informed him that his stock was then held by the defendant bank, and, upon the trial, the counsel for the McGays stated in open, court that his clients had no interest in and made no claim to the certificate held by the defendant bank.
    
      Held, that a finding by the trial court, to the effect that the plaintiff had not established that the certificate of stock held by the defendant bank belonged to him, was contrary to the weight of evidence;
    That the fact that the plaintiff had presented his claim to the trustee in bankruptcy of the firm of Hatch & Foote did not prevent him from prosecuting the present action, especially as it appeared that the action was instituted prior to the filing of the claim.
    
      Semble, that it would make no difference if the action had been instituted after the filing of the claim.
    
      Quare, whether, if a dividend had been declared in the bankruptcy proceedings, the pendency of the present action might be urged as a bar to the plaintiff’s right to participate therein until after the settlement and determination of the action.
    Ingraham, J., dissented.
    Appeal by the plaintiff, Thomas Mould, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 7th day of January, 1902, upon the decision of the court rendered after a trial at the Rew York Special Term dismissing the complaint upon the merits, except that portion which directs the sale of certain stock and the payment of the amount due the defendant bank.
    
      Charles Be Hart Brower, for the appellant.
    
      Felix Jellenik, for the respondent Moeller.
    
      Avery F. Cushman, for the respondent Leonard, Jr.
   McLaughlin, J.:

This action was brought to recover certain stock, or the proceeds thereof, alleged to have been deposited by the plaintiff with Hatch & Foote, stockbrokers, as collateral security for the payment of money advanced in the purchase of stocks and in turn deposited by that firm with the defendant bank .as collateral security for a loan.

The complaint was dismissed, the trial court finding as a fact that the plaintiff had failed to show that the certificate of stock held by the bank belonged to him, and from the judgment entered upon this decision the plaintiff has appealed.

It appeared upon the trial, and such facts were uncontradicted, that the firm of Hatch & Foote, stockbrokers, on the 6th- of April, 1900, held a certificate (No. 18,821) for 100 shares of the preferred stock of the Union Pacific Railroad Company, as collateral security for the payment of money advanced by it to purchase for the plaintiff 100 shares of stock of the American Ice Company, which was subsequently sold at a loss to the plaintiff (after crediting a dividend received thereon) of $704; that the certificate at the time the plaintiff delivered it to Hatch & Foote stood in the name of Blake Bros., but was indorsed in blank; that according to the custom pursued by tiie firm of Hatch & Foote, whenever stock was deposited with it as collateral, the certificate was surrendered and a new one issued in the name of the firm; that on the tenth of August following, Hatch & Foote borrowed from the defendant bank $25,000, and among the collaterals deposited with the bank for the payment of the loan was a certificate of 100 shares of the preferred stock of the Union Pacific Railroad Company, but of a different number from the one which the plaintiff delivered to Hatch & Foote; that shortly after this loan Hatch & Foote became insolvent, made a general assignment for the benefit of creditors and subsequently were adjudged bankrupts, the defendant Leonard being appointed trustee in such proceeding.

It was further made to appear that at the time of such failure Hatch & Foote held three certificates of 100 shares each of the preferred stock of the Union Pacific Railroad Company, • and which they had pledged at different places as collateral security for loans — one of which concededly belonged to the plaintiff, one to the defendant Robert J. McGay, and the other to the defendant Frank B. McGay; that the senior member of the firm of Hatch & Foote at or immediately prior to the commencement of this action stated, according to the testimony of the plaintiff, that he had traced the plaintiff’s stock to, and the same was then held by, the defendant bank, and at the trial the counsel for the McGays stated in open court that his clients had no interest in and made no claim to the certificate held by the defendant bank.

The foregoing facts not being contradicted, we are of the opinion that the finding made by the trial court to the effect that the plaintiff had not established that the certificate of stock held by the defendant bank belonged to him, was contrary to and against the weight of evidence. We have not only the testimony of the plaintiff, which is not contradicted or questioned in any way, to the effect that the senior member of the firm of Hatch & Foote stated that he had traced the plaintiff’s stock to and the same was held by the defendant bank, but we also have, in addition thereto, .the concession made by the McGays that they did not claim such certificate. As already said, the firm of Hatch & Foote only held three certificates at the time of their failure, one of which belonged to the plaintiff and the other two to the McGays, and if the McGays had no interest in this certificate, then it certainly must belong to the plaintiff. That the number of the certificate held by the bank does not correspond to the one left by plaintiff with Hatch & Foote is of no importance in view of the custom pursued by that firm in having stock put up as collateral transferred.

Ror does the fact that the plaintiff presented his claim to the trustee in bankruptcy prevent the prosecution of this action to recover the stock or its proceeds. (Rhinelander v. National City Bank, 36 App. Div. 11.) This action was instituted, so far as appears, prior to the filing of such claim, and if it were not, it would not, in our opinion, make any difference, because the bringing of the action is sufficient evidence of an election upon the part of the plaintiff to pursue this remedy and recover the stock or its proceeds, instead of relinquishing whatever right he might have in this respect and take in place thereof whatever dividend might be made to him as general creditor in the bankruptcy proceeding. . It may be that if a dividend be declared in that proceeding, the fact that the plaintiff had brought this action might there be urged as a bar to his right to participate therein until after the settlement and determination of this action, but that question is not before us for consideration.

On the whole case, therefore, we are of the opinion that justice requires there shall be a new trial.

The judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event of the action.

Van Brunt, P. J., O’Brien and Hatch, JJ., concurred ; Ingraham, J., dissented.

Ingraham, J. (dissenting):

I do not concur in the reversal of this judgment, as I do not think that the evidence required a finding that the stock of the Union Pacific Railroad Company which was held as collateral security by the Importers and Traders’ Bank was the plaintiff’s stock. The question presented is between the plaintiff and the trustee in bankruptcy of Hatch & Foote as to who> was entitled to this stock. Neither of the other defendants had any interest in the determination of that question. To entitle the plaintiff to succeed upon this issue as against the trustee in bankruptcy, he must prove by evidence competent as against the trustee that the' stock held by the defendant bank was his stock. I do not think that the declaration of one of the bankrupts, made after the adjudication and after the title to the bankrupts’ estate had vested in the trustee, was competent evidence as against the trustee. The bankrupts being parties to the action, their declarations might have been competent evidence as against them, and so admissible; but when the question came to, be determined as to whether or not this stock was the plaintiff’s as against the trustee,'the court was not justified in accepting the declarations of the bankrupts after the adjudication in bankruptcy • to prove the fact as against the trustee, and the statement of counsel for the McGays that they claimed no interest in the stock, would have, as I look at it, no possible bearing upon the ques^ tion Whether the plaintiff had proved as against the trustee in bankruptcy that the stock in question was the plaintiff’s stock. This-stock stood in the name of the bankrupts, upon its face was the property of the bankrupts, and the title to it passed to their trustees in bankruptcy. The trustees represented the' creditors of the bankrupts and were entitled to all of the bankrupts’ property for distribution among them. If, as the plaintiff claims, this 100 shares of the stock held by the defendant bank was his identical stock, he could have had no difficulty in proving that fact by showing that the 100 shares of stock that he had delivered to the bankrupts had been transferred upon the books of the company to the bankrupts and was represented by the particular certificate of stock that was held by the bank. It may be true that he had delivered 100 shares of stock to the bankrupts and the bankrupts had deposited 100 shares of the stock with the bank; but as it was also proved that the bankrupts held other shares of the stock I think there was no competent evidence to prove that this stock in question ivas plaintiff’s stock, and for that reason the court below was right in refusing to award him the stock. But assuming that there was some evidence of that fact, still a question of fact was presented for the trial court to determine, and it certainly cannot be said that this unsworn declaration of one of the bankrupts, after he had lost all interest in the question, was sufficient to compel the court to find as a fact that this stock belonged to the plaintiff. The court having the question before it has decided that the evidence was not sufficient to sustain a finding of the plaintiff’s ownership of the stock, and I agree with the court below that the evidence was not sufficient. Certainly it was not so clear and convincing as to justify us in reversing the finding as against the weight of evidence.

Judgment reversed, new trial ordered, costs to appellant to abide event.  