
    (84 Hun, 40.)
    ANDREWS v. WELLING et al.
    (Supreme Court, General Term, First Department.
    January 18, 1895.)
    Trusts—Tracing Trust Property—Identification.
    In an action to recover possession of two bonds held by defendant as assignee for benefit of creditors, plaintiff testified that he had bought ten bonds, including the two in question, and placed them in the hands of defendant’s assignor for sale; that the assignor had sold eight, and accounted for the proceeds, and put the other two in an envelope, and marked it as plaintiff’s property. Defendant testified that the assignor gave him two packages of papers, stating that one contained his personal assets and the other contained the trust property. The envelope containing the bonds claimed by plaintiff, and marked in the assignor’s own handwriting as plaintiff’s property, was found in the package containing the trust property. Helé, that the bonds were sufficiently identified, though the assignor . had in several instances incorrectly designated the owners of some of the trust property held by him.
    Appeal from judgment on report of referee.
    Action by William L. Andrews against Richard W. G-. Welling, as assignee for the benefit of creditors of Francis H. Weeks and Mary Elizabeth Goddard Williams, to recover possession of certain-
    bonds. The complaint was dismissed, and plaintiff appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    Alfred J. Taylor, for appellant.
    John L. Wilkie, for respondent.
   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 other 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. Eight 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 East 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 own 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 & Go., 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, nor is there any contradiction 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 not 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, 35 N. E. 626, 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 case 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 East 37th Street.”

In the envelope 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 Sanchez, 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 Guellermina, share and share alike.”

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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 indorsement 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 be-
longed to the plaintiffs. They were found in the safe, and there is the unqualified declaration that they belonged to them. We must 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, nor as 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 accordingly should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  