Appeal from Trial Term, New York County.
Action by Harriet N. Kilmer, Charles E. Kilmer's administratrix, against Edward F. Hutton and others. From a judgment for defendants and an order refusing a new trial, plaintiff appeals. Reversed, and new trial ordered.
[116 N.Y.S. 128] Black & Peck (Frank S. Black, of counsel), for appellant.
William F. S. Hart (David Tim, of counsel), for respondents.
Argued before PATTERSON, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and HOUGHTON, JJ.
[116 N.Y.S. 129] CLARKE, J.
The defendants are stockbrokers, and the plaintiff is the widow and administratrix of Charles E. Kilmer, deceased. Mr. Kilmer died on March 23, 1906, intestate, and leaving a widow and one daughter, Catherine E. Swinnerton, his sole heir and next of kin. Mrs. Kilmer, having taken out letters of administration, obtained from a safe-deposit box a certificate, No. 125,003, dated February 26, 1906, for 100 shares of the stock of the New York Central & Hudson River Railroad Company, in the name of Charles E. Kilmer. The customary assignment upon the back thereof was in blank, but signed " C. E. Kilmer, in presence of A. Foshay," dated February 26, 1906. Also certificate C414, dated November 8, 1905, for 100 shares of first preferred stock of the United States Rubber Company, issued to Charles E. Kilmer. The assignment was in blank, signed " C. E. Kilmer, in presence of A. Foshay," and dated February 26, 1906. Also five certificates for 100 shares each of Columbus & Hocking Coal & Iron Company. These certificates were made out in the names of various persons, and the assignments in blank thereon bore the signatures of such persons.
In the first part of April, 1906, Miss Foshay, who had been the stenographer of Mr. Kilmer, at Mrs. Kilmer's request wrote in the names Harriet N. Kilmer and Catherine E. Swinnerton in the blank left for the name of the assignee on the assignment indorsed on the New York Central certificate. Mrs. Swinnerton was Mrs. Kilmer's daughter. Thereupon Mr. Swinnerton, her son-in-law, presented this certificate at the office of the company for the purpose of having it transferred in accordance with the assignment. The transfer agent declined to do it, because on the face of the certificate appeared the name Charles E. Kilmer, and the signature to the assignment was C. E. Kilmer, stating that some person must be procured to guarantee that the signature of C. E. Kilmer was written by Charles E. Kilmer, the holder of record.
Mrs. Kilmer had found among her husband's papers a letter with the heading:
" E. F. Hutton & Co., Bankers, 33 and 35 New Street; Members N.Y. Stock Exchange, etc., January 9th, 1906. My Dear Mr. Kilmer: Just a line to let you know where I am. I am here from ten to three. Yours truly, C. A. Bliven"
-indorsed, " Jan. 11, 1906, K." Also a letter addressed to Mr. Kilmer with the same heading of E. F. Hutton & Co., January 18, 1906, addressed to Mr. Kilmer:
" As per your instructions, we have bought for your 500 shares of Hocking Coal & Iron as follows:
200 shares at 20 3/8.
300 ‘ ‘ 20 1/2.
Kindly send check for $3,000 as margin by messenger today. Yours very truly, C. A. Bliven."
Also a copy of a letter written by Miss Foshay, at Mr. Kilmer's dictation, the original of which was mailed by her, dated January 18, 1906:
" Messrs. E. F. Hutton & Co., 33 New Street, Manhattan. Your favor of today notifying me that you have bought 500 shares for my account of Columbus & Hocking Coal & Iron Company at hand. Enclosed herewith please find check for the sum of $3,000 as margin for my account."
[116 N.Y.S. 130] A canceled check drawn by Mr. Kilmer on the Morton Trust Company, dated January 18, 1906, to the order of E. F. Hutton & Co., for $3,000, indorsed by them and stamped " Paid." A memorandum statement under the heading of E. F. Hutton & Co., bankers, and dated January 22, 1906:
" Mr. C. E. Kilmer: We have this day Bot your account with the following:
| Jan. 19.
|| Bt. 200 H. C. I. 20-3/8 ...