157 N.Y.S. 182 | N.Y. App. Div. | 1916
Lead Opinion
This action was brought to recover ten shares of stock of the Singer Manufacturing Company alleged to have been loaned by Rosalie Judson, plaintiffs’ testatrix, to the appellant, Walter 0. Hatch. The answer put in issue the material allegations of the complaint and set up as an affirmative defense the Statute of Limitations.
At the trial there was little dispute of fact — the question really turning upon inferences to be drawn from the conceded or undisputed facts. It there appeared that in December, 1903, Rosalie Judson became the owner of a certificate representing ten shares of the Singer Manufacturing Company stock; that at that time Miss Judson lived with the appellant’s father and mother and continued to so live until she died, in June, 1913; that during the same time appellant was also a member of the household; that in January, 1904, she delivered the certificate in question to the appellant and at or about the same time gave him a memorandum, which reads as follows:
“ Jan. 11th, 1904.
“I have of my own free will let Walter 0. Hatch have ten shares of Singer’s Mfg. Co. stock.
“ ROSALIE JUDSOH.”
that at the time the certificate was delivered the appellant was a young man about to engage in the brokerage business with his brother; that he so informed his aunt and asked her if she wanted to help him out, to which she responded by saying, “ If ten shares of Singer stock would help ” he “ could
The appellant was corroborated as to his aunt’s giving him the stock by his father, mother, brother and a trained nurse who attended Miss Judson during her last illness.
At the conclusion of the evidence counsel for the appellant moved to dismiss the complaint, which was denied and an exception taken and the case sent to the jury with instructions that the burden was upon the appellant to prove that the delivery of the certificate “was a gift instead of a loan,’’which was also excepted to by him. The jury rendered a verdict in favor of the plaintiffs and from the judgment entered thereon the appeal is taken.
I am of the opinion the verdict is against the evidence. The testimony of the appellant and his witnesses was not contradicted or impeached in any way, and there was nothing at the close of the evidence to sustain the claim of the plaintiffs that the transaction amounted not to a gift but to a loan, unless it be the form of the memorandum to which reference has been made, and that the dividends during the life of Miss Judson were paid to her. The form of the memorandum does not show that it was a loan nor is such inference to be drawn from the words used; on the contrary, if any inference is tobe drawn, it is that the transaction was a gift and not a loan. Nor do I think the fact that the dividends were paid to her,
But I think this evidence is clear and satisfactory. It shows that there was a parting by the aunt with all present and future power and dominion over the stock. This was all that was required. (Young v. Young, 80 N. Y. 431; 20 Cyc. 1196.)
I am of the opinion that the appellant’s motion to dismiss the complaint should have been granted. The evidence did not justify a finding that the transaction constituted a loan; on the contrary, the only fair inference to be drawn from it was that it was a gift.
I am also of the opinion that the court erred in its charge. The burden to establish a loan was upon the plaintiffs and that burden was not shifted notwithstanding the proof established a gift. To entitle the plaintiffs to recover they had to prove the loan. This they alleged in the complaint and had to establish by proof at the trial. The exception to the charge that “the burden is on the defendant to prove that it was a gift instead of a loan ” was well taken.
Scott and Page, JJ., concurred; Clarke, P. J., and Laughlin, J., dissented in part.
Dissenting Opinion
I concur in the reversal of this judgment upon the error in the charge pointed out by Mr. Justice McLaughlin, but I think a question of fact is presented which requires submission to a jury. I, therefore, vote to reverse and grant a new trial, with costs to the appellant to abide the event.
Laughlin, J., concurred.■
Judgment as to above-named defendant reversed, with costs, and complaint dismissed, with costs.