
    Beverhout Thompson, App’lt, v. Annie Stanley, as Adm’rx of etc., of David A. Stanley, Deceased et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    
      i. Coefobations—Action.
    In an action by a party as stockholder, in behalf of a corporation, for its property misappropriated by its president, no presumption arises, from the fact that he had been, at the time, a stockholder, where it appears that he had transferred his stock, that,he was still a stockholder, because he alleges in the complaint that such transfer was obtained without consideration, or by false representations.
    
      % Same—Evidence.
    A person does not show himself to be a stockholder in a corporation by introducing a certificate of stock, issued to another, where there is no proof going to establish a transfer to him of such stock by a person having the ownership thereof.
    Appeal by plaintiff from a judgment dismissing the complaint.
    
      L. Karge, for app’lt; Dill, Chandler & Seymour {.F Seymour of counsel), "for resp’ts.
   Tan Brunt, P. J.

This action is brought by the plaintiff, claiming to be a stockholder of the defendant corporation, on its behalf, to recover from defendant Stanley, as administratrix, the proceeds of certain assets of the defendant corporation alleged to have been fraudulently misappropriated by her intestate while president of said corporation. In his complaint, the plaintiff alleged that in or about the year 1882 he subscribed for and purchased 138 shares of the capital stock of said corporation, and a certificate thereof was duly issued to the plaintiff, who became the owner thereof, and that the deceased, David A. Stanley, who “ then owned or controlled the greater part of said corporation, was acting as its president and manager, and controlling its affairs, represented to plaintiff that said corporation had determined to close up its business, and divide its assets among the stockholders entitled thereto, and, in order to facilitate the same, requested plaintiff to give to him, said Stanley, the control of plaintiff’s stock, stating that it would hasten and facilitate the closing up of the affairs of the corporation, and the realization by plaintiff of the share of its assets to which plaintiff was entitled, and promised and agreed if plaintiff would do so, to wind up the affairs of said corp ¡ration, sell its property, convert its assets into money, and that plaintiff should receive the proportion to which" he was entitled.” The complaint further alleges that the plaintiff, being “ignorant as to the management and affairs of said corporation, and relying on the statements made by said Stanley, deceased, as aforesaid, did, in or about the month of February, 1886, execute to said Stanley an assignment of said one hundred and thirty-eight (138) shares of stock of said corporation, belonging to plaintiff as aforesaid; that plaintiff did not at that time, or has he ever, received any consideration whatever for said assignment of said stock, nor has said Stanley ever accounted to plaintiff, or paid him anything whatever for his stock or interest in said corporation and its property.”

The complaint then alleges the ownership by defendant corporation of certain valuable property, the appropriation of same to his own use by Stanley, the mismanagement of the affairs of the corporation, its cessation of business, and that since 1886 it had transacted no corporate business. It further alleges the death of Stanley, and the appointment of the defendant Annie Stanley as administratrix, and prays that she, as administratrix as aforesaid, be directed to account for the money, property, and rights of said corporation received by said Stanley, deceased, or in any. manner retained by him, and that said “ corporation defendant be required to account for any property, money, or interest, if- any, belonging to it, or in its control; that plaintiff be decreed entitled •to, and to be paid, the amount he may be found entitled to receive from said defendants, or either of them, and that the plaintiff may have such other or further relief as may be just and proper.” The defendant Annie Stanley, by her answer, substantially denied all the allegations of the complaint, and alleged ownership in said Stanley, deceased, of said 138 shares of stock. Upon the trial, after the plaintiff had attempted to prove that he was a stockholder of said corporation, and after he had stated to the court that he had no further evidence to give upon that point, the court stopped the trial, and dismissed the complaint, upon the ground that the plaintiff had not shown himself to be a stockholder, and from the judgment thereupon entered this appeal is taken.

We see no errror whatever in the rulings made by the court below. The complaint showed that the 138 shares of stock which the appellant claimed to own had been transferred to Stanley; the allegation being that such transfer had been induced by false representations of Stanley, and without consideration. No evidence whatever was attempted to be offered to support this allegation. All that the plaintiff did prove was, by the production of a certificate of stock from the papers of the corporation, and marked “Canceled,” that 138 shares had been issued to him; that he had signed a blank power of attorney upon the back of said certificate; and that said certificate had found its way into the hands of the company again, and had been canceled. It is true that the plaintiff was asked whether he ever received any consideration from anybody for the transfer of that certificate. But this question was objected to upon the ground that its answer might involve testimony as to a transaction between the witness and the deceased, and was properly excluded upon that ground. And this was the only attempt, iq any way, to prove the allegations in the complaint as to the circumstances under which the transfer was made. Clearly, because the plaintiff had been a stockholder at one time, and it appeared that he had transferred his stock, no presumption arises that he is still a stockholder, because he alleged in the complaint that such transfer was obtained without consideration, or by false representations. It was necessary that theplaintiff should at least prove these facts, in order to entitle him to any' standing whatever in court, even if that would suffice.

Upon the trial, the plaintiff attempted further to establish his position as a stockholder by exhibiting a certificate for fi ve shares of stock, which certificate showed that one Henry J. Ewing, of New York city, was entitled to five shares of'stock in said company. Upon the back of this certificate was indorsed a blank assignment and transfer purporting to be signed by Caroline A. Ewing, administratrix of the estate of Henry J. Ewing. The receipt of this certificate was objected to upon the ground that the execution of the assignment upon the back of this certificate was not proven, in that the right of Caroline A. Ewing to make any transfer was not proven, and also, even if such right existed, there was no proof in regard to her execution of the assignment and transfer; and the evidence was excluded, and properly so, because there was no proof going to show any transfer of this stock by any person having the ownership thereof.

There seems to have been, therefore, no error committed by the learned court, in dismissing the complaint upon the plaintiff’s failure to prove his right to maintain the action. The judgment should be affirmed, with costs.

Follett and Parker, JJ., concur.  