160 N.E. 910 | NY | 1928
This action, in replevin, was brought to recover the possession of certain securities which were in the possession of Edward A. New at the time of his death. The plaintiff, in her complaint, made no allegation as to the facts constituting her acquisition of title. She was content to assert that she was, at all the times mentioned in the complaint, and now is, the owner of the securities and entitled to the possession thereof. This allegation was denied by the defendant. On the trial, at the conclusion of the evidence, each side moved for the direction of a verdict. The trial judge directed a verdict for the *449 plaintiff. The Appellate Division reversed and dismissed the action.
The securities were found, after the death of Edward A. New, in a safe deposit box in the vaults of a certain safe deposit company. An envelope containing certificates of stock in various corporations, issued to Edward A. New, was discovered in the box. Upon the outside of the envelope there had been written by New the words "All in envelope belong to Anna C. Miller." Anna C. Miller is the plaintiff. Within the envelope there was a slip of paper upon which New had written: "Whatever is in this envelope belongs to Miss Anna C. Miller." There were also two packages of bonds in the safe deposit box. One contained bonds of the Baltimore and Ohio Railroad Company, payable to bearer. Attached thereto was a slip bearing words, written by New, reading: "These bonds of B. O. belong to Anna C. Miller. Edw. A. New." The other package contained bonds of the Tennessee Electric Power Company, payable to bearer. Attached was a slip bearing the words, in New's handwriting: "These bonds Tenn. Elect. belong to Anna C. Miller. Edw. A. New."
The safe deposit box had been rented by Edward A. New in November, 1925. Prior to that time the plaintiff, Anna C. Miller, had a deposit box in the same safe deposit company. Frequently she and New had visited the vaults of the company; had removed the plaintiff's box; had retired to a booth to open it; had handled the securities therein contained. After New had leased a box for himself, the two had pursued the same course of action in reference to that box and the securities in question which were contained therein.
In Govin v. de Miranda (
The judgment should be modified by granting a new trial and as modified affirmed, with costs to abide the event.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and O'BRIEN, JJ., concur.
Judgment accordingly.