
    LONGWORTH v. EAST RIVER NAT. BANK.
    (Supreme Court, Appellate Division, First Department.
    February 13, 1914.)
    1. Evidence (§ 372*)—Documentary Evidence—Ancient Documents. ' In an action against a national bank to compel it to issue a certificate of stock in place of a certificate issued to B. by its predecessor, a state bank, an assignment on the back of the certificate, dated in 1865, bearing the purported signature of B., witnessed by H., was not admissible without proof of the signatures of B. or H., where it appeared that it was found among the papers of plaintiff’s grandfather, there was no evidence of any connection between B. and such grandfather from which it could be inferred that the document came from its proper custodian, the person alleged to have found it was not produced as a witness, and it was admitted that for more than ten years neither B. nor the grandfather had been upon the books of the bank as a stockholder, and that B.’s stock was sold and his account with the bank closed by crediting the amount of the sale and two dividends on the stock in 1867, since the rule that an ancient document is admissible without direct proof of its execution, if it appears to be at least 30 years old, is subject to the provision that it must be found in the proper custody and be unblemished from alterations and otherwise free from suspicion.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. § 372.*]
    2. Evidence (§ 370*)—Stock—Ownership—Sufficiency of Evidence. The production of a certificate of stock issued to B., without proof of the authenticity of the assignment on the back thereof or that plaintiff or any of his predecessors in possession were purchasers or holders for value, did not establish title to the stock.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1538, 1559, 1560, 1562-1578, 1592; Dec. Dig. § 370.*]
    Appeal from Special Term, New York County.
    Action by Irwin T. Longworth against the East River National Bank. From a judgment dismissing the complaint bn the merits, plaintiff appeals. Affirmed. y
    See, also, 153 App. Div. 891, 137 N. Y. Supp. 1127.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and HOTCHKISS, JJ.
    Wood, Cooke & Seitz, of New York City (Robert H. Griffin, of New York City, of counsel), for appellant.
    Anderson, Iselin & Anderson, of New York City (Outerbridge Horsey, of New York City, of counsel), for respondent.
   CLARKE, J.

Prior to May 1, 1865, the East River Bank, which had been organized under the laws of the state of New York, was in existence. On the 2d of July, 1864, it issued its certificate of stock, No. 394, for 27 shares, to James B. Burgess. On May 1, 1865, the said bank duly surrendered its charter and became a banking association under the name of the East River National Bank, pursuant to the-statutes of the United States and chapter 97 of the Laws of 186*5 of the state of New York.

This action is brought to compel the defendant to issue, in place of the certificate for 27 shares of the East River Bank originally issued to said Burgess which plaintiff has in his possession, a certificate for such number of shares of the East River National Bank as plaintiff may be entitled to under the reorganization, and that the defendant account for and pay to plaintiff all arrears of dividends now remaining unpaid on said 27 shares or on the equivalent thereof in shares of- the defendant.

It was admitted upon the trial that, upon the conversion of the said state bank into a national bank, Burgess, as the holder of 27 •shares in the old bank, became entitled to 33 shares in the new bank. Upon the trial the plaintiff offered the original certificate of stock of the East River Bank. This bore upon its back an assignment dated the 31st day of October, 1865, bearing the purported signature of James B. Burgess with a seal and the underwriting “sealed and delivered in the presence of Wm. Highet.” No testimony as to the signature of Burgess or the witness Highet was given, but the court received the certificate in evidence, over objection and exception.

The plaintiff testified:

“My brother gave me this certificate of stock as a gift. I did not pay any money for it. * * * I think the certificate was given to him by my father. * * * My father said that this certificate was among some papers, of my grandfather’s. My grandfather’s name was Peter Longworth. He died about 19 years ago. My father is not dead. He lives in New Jersey.”

He further testified that the name J. Brower Longworth was written by his brother in the blank left for the transferee’s name on the assignment on the back of the certificate.

The finding of the learned court, at the request of the plaintiff, though not contained in the decision, that “each and all of the signatures of such certificate of stock and to the transfer and power of attorney indorsed thereon were genuine and bona fide,” was without evidence to support it, so far as the signature of Burgess and the witness Highet were concerned. While it is the rule that an ancient document is admissible in evidence without direct proof of its execution, if it appears to be of the age of at least 30 years, that rule is coupled with a proviso that it be found in the proper custody and is unblemished from alterations and otherwise free from suspicion. See 17 Cyc. 443, and the authorities there cited, including Clark v. Owens, 18 N. Y. 434.

. The ancient document rule is inapplicable. The certificate offered bore date July 2, 1864, and was issued by a corporation which went out of existence May 1, 1865. The sole testimony in regard to it is that it was found among the papers of plaintiff’s grandfather, one Long-worth, who died 19 years before thé trial, without a particle of evidence to show any connection between Longworth and Burgess from which it could be even remotely inferred that said document came from the proper custodian thereof. Besides, the person alleged to have found it is not produced to testify as to the circumstances surrounding the custodianship or the finding. This, coupled with the fact that it is admitted that for upwards of ten years past neither J. Brower Longworth nor James B. Burgess has been upon the books of the bank as a stockholder thereof, and that it is shown by the books of the bank that Burgess’ stock was sold on April 6, 1867, and his account with the bank was closed on May 16, 1867, by crediting the amount of the sale and two dividends on said stock, demonstrates that the admission of said certificate in evidence was error.

Without proof of the authenticity of the assignment of said stock, and it not appearing that plaintiff or any of his predecessors in possession were purchasers or holders for value, the bare production •of the certificate was insufficient to establish title to the stock.

The judgment appealed from should be affirmed, with costs and disbursements to the respondent, but the eighth of the plaintiff’s proposed findings found by the court, so far as it finds that the signature to the transfer and power of attorney indorsed on the certificate of stock is genuine and bona fide, should be reversed as not supported by the evidence. All concur.  