Pollock v. . the National Bank , 7 N.Y.3d 274 ( 1852 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The Misses Pollock were the acknowledged owners of fifty shares of stock of the National Bank, standing in their names on the books of that institution, with the certificates, the evidence of their title in their possession. This stock was subsequently transferred from their names to the names of other persons by the permission of the bank, which received and canceled the original certificates and has ever since refused to pay dividends to the complainants, or in any way to recognize them as stockholders in the institution, and denied their title to or any interest in the capital stock of the bank. All this has been done without any authority or assent, express or implied upon the part of the true owners, and the question is are they entitled to any relief? It is said that inasmuch as the transfer was made by virtue of a forged power of attorney the stock is still the property of the complainants. But a title to stock in the abstract without any legal evidence of such title, without the power of sale or of obtaining dividends is not the ownership which the complainants once possessed and of which they have been deprived by the agents of the bank. They held certificates; these the bank have canceled, and instead of issuing new ones to the complainants it denies their right altogether. It was said that there was no proof that the power of attorney was forged. But the answer is that the original title of the Misses Pollock in admitted, and if the bank sets up a title derived from them in bar of their claim, it must be proved. The affirmative of the issue is with the respondent.

The technical objection as to the form of the remedy is not well founded. This is not a cross bill in any sense. The complainants seek affirmative relief which the bank refuses upon the ground that the complainants have no claim to any stock but have duly parted with all their title. I think the bank is bound to issue new certificates and account for the dividends, or if upon inquiry it should be ascertained that it has no stock which it can transfer to the names of the complainants, then it should pay to them the value of the shares owned by them according to the prayer of the bill. The decree of the supreme court should be reversed and a decree made in accordance with the prayer of the complainants' bill.

RUGGLES, Ch. J., and JEWETT, JOHNSON and WATSON, Justices, concurred.

GRIDLEY and EDMONDS, Justices, were absent.