Emmet v. City of New York

Headnote

Emmet v. City of New York, 163 App. Div. 603 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 23, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The plaintiff, as liquidator of the business of the Title and Guarantee Company of Rochester, N. Y., brought suit to recover for a conversion by the defendants of certain registered corporate stock of the city of New York of the conceded value of $41,830, owned by the Title and Guarantee Company. Officers of the Title and Guarantee Company, whose authority was, by writing, limited to a sale, delivered the certificate of stock to defendants in pledge for the obligations of the South Shore Traction Company to the city and as a substitute for a cash pledge previously made by said South Shore'Traction Company. An officer of the South Shore Traction Company was present at the time and urged the transaction. The defendants delivered the cash pledge to the South Shore Traction Company whereupon it was misappropriated from said South Shore Traction Company. That the title company was deprived of its property was conceded. The trial justice, however, dismissed the complaint "on the theory that a check of the South Shore Traction Company to the order of the title company, although in reality no payment but merely a fraudulent device, gave the transaction, in the eyes of the defendants, an appearance of a sale to the South Shore Traction Company. The trial justice accordingly concluded that inasmuch as the stock was negotiable the defendants in taking it from the South Shore Traction Company obtained good title.