122 N.Y.S. 78 | N.Y. App. Div. | 1910
This plaintiff brought two actions for fraud against the Cowperthwaits. The actions were tried together, and the records are identical. In one action a certain corporation, was made a party defendant and in this action the respondent Aymar. The-appeals in these actions are separate. Our judgment in the action first heard on appeal, written by Burr, J. (Hickok v. Cowperthwait, 134 App. Div. 617), disposes of all of the questions as to the transactions of the defendants Oowperthwait, and, therefore, as tó them this judgment is reversed. We have then but to consider this appeal as to the respondent Aymar.
At the time of the alleged fraudulent transactions of the Cowperthwaits, Aymar, as creditor of Oowperthwait senior, held on pledge as security for the debt certain certificates of stock standing
Upon naked request Aymar returned the certificates, and there is no proof that he did so for airy special, limited or temporary purpose of his own or for his own benefit, so that the pledgor could be regarded in possession as the special bailee, servant or agent of the pledgee. Moreover, it does not appear that Oowperthwait senior, after he obtained possession of the certificates, dealt with them for the benefit or to the use of Aymar in any way. He caused the stock represented by the certificates, together with a few other
Woodward, Burr, Thomas and Bien, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.