7 Lans. 317 | N.Y. Sup. Ct. | 1873
When Gowdy, the owner of the stock, on the 30th August, 1859, signed the power of attorney, and delivered the certificate, with the power indorsed, to his creditor Martin, he transferred all his title, legal and equitable, to the stock, and, by virtue of the power and of the transfer contained in the same instrument, the holder of the certificate and power alone had authority thereafter to cause a transfer to be made on the books of the corporation. As Gowdy had
In McNeil v. Tenth National Bank (46 N. Y., 331), Rapallo, J., in delivering the opinion of the court, said: “It has also been settled by repeated adjudications that, as between the parties, the delivery of the certificate, with the assignment and power indorsed, passes the entire title, legal and equitable, in the shares, notwithstanding that by the terms of the charter or by-laws of the corporation the stock is declared to' ’be transferable only on its books; that such provisions are intended solely for the protection of the corporation, and can be waived or asserted at its pleasure, and that no effect is given to them except for the protection of the corporation; that they do not incapacitate the shareholder from parting with his interest, and that his assignment, not on the books, passes the entire legal title to the stock, subject only to such liens or claims as the corporation may have upon it, and excepting the right of voting at elections, etc.”
By section 234 of the Code it is provided that the rights or shares which a defendant may have in the stock of any corporation shall be liable to be attached and levied upon and sold to satisfy the judgment and execution. But this provision of law cannot aid an attachment against a defendant who has no rights or shares in the stock of a corporation. If, previous tp the issuing of the attachment, the defendant has assigned all his interest in the rights or shares, and delivered over the certificate with transfer and power, it is thenceforth the holder of these indicia of title who is possessed of the property in the shares, and not the original stockholder.
When, therefore, the plaintiff, as the owner and holder of the certificate in question, applied to the defendant for a transfer of the shares, and produced the certificate, with the power of the original stockholder, he was entitled to have the transfer made. The refusal of the corporation gave him a right of action for his damages. (Com. Bank of Buffalo v. Kortright, 22 Wend., 348.)
We think the judgment should be affirmed.