Rubinstein v. Rubinstein

New York Supreme Court

Rubinstein v. Rubinstein

176 Misc. 823, 28 N.Y.S.2d 68, 1941 N.Y. Misc. LEXIS 1835

CourtNew York Supreme Court

DecidedMay 5, 1941

StatusPublished

Cited by2 cases

This text of 176 Misc. 823 (Rubinstein v. Rubinstein) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rubinstein v. Rubinstein, 176 Misc. 823, 28 N.Y.S.2d 68, 1941 N.Y. Misc. LEXIS 1835 (N.Y. Super. Ct. 1941).

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Opinion

Walter, J.

Motion to vacate ex parte order for examination under section 1094-a of the Civil Practice Act is granted. The section authorizes an examination only in an action to recover a chattel, and the complaint here refers only to shares of stock and makes no reference to any certificate representing or evidencing such shares. Even if it had referred to such certificate T think the result would be the same. Certificates of stock are personal property, but they are not chattels. (Ajax Craftsmen, Inc., v. Whinston, 269 N. Y. 7; Gen. Constr. Law, § 15; Niles v. Mathusa, 162 N. Y. 546; Crocker Fire Prevention Corp. v. Jacobs, 235 App. Div. 216.) When the Legislature, upon the recommendation of the Judicial Council, changed the holding in the Ajax Craftsmen’s case (supra), that such certificates are not subject to levy under an execution, it did so not by amending section 679 of the Civil Practice Act or section 15 of the General Construction Law so as to include them in the phrase “ goods and chattels,” but by enacting separate provisions specifically subjecting them to executions. (Laws of 1936, chap. 153, amdg. Civ. Prac. Act, § 687, and Pers. Prop. Law, § 162.) To hold that such certificates are chattels would create needless uncertainty and complications by apparently making them subject to the law relating to chattel mortgages. (See Niles v. Mathusa, supra.)

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Walter, J.

Motion to vacate ex parte order for examination under section 1094-a of the Civil Practice Act is granted. The section authorizes an examination only in an action to recover a chattel, and the complaint here refers only to shares of stock and makes no reference to any certificate representing or evidencing such shares. Even if it had referred to such certificate T think the result would be the same. Certificates of stock are personal property, but they are not chattels. (Ajax Craftsmen, Inc., v. Whinston, 269 N. Y. 7; Gen. Constr. Law, § 15; Niles v. Mathusa, 162 N. Y. 546; Crocker Fire Prevention Corp. v. Jacobs, 235 App. Div. 216.) When the Legislature, upon the recommendation of the Judicial Council, changed the holding in the Ajax Craftsmen’s case (supra), that such certificates are not subject to levy under an execution, it did so not by amending section 679 of the Civil Practice Act or section 15 of the General Construction Law so as to include them in the phrase “ goods and chattels,” but by enacting separate provisions specifically subjecting them to executions. (Laws of 1936, chap. 153, amdg. Civ. Prac. Act, § 687, and Pers. Prop. Law, § 162.) To hold that such certificates are chattels would create needless uncertainty and complications by apparently making them subject to the law relating to chattel mortgages. (See Niles v. Mathusa, supra.)

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Bluebook (online)

176 Misc. 823, 28 N.Y.S.2d 68, 1941 N.Y. Misc. LEXIS 1835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubinstein-v-rubinstein-nysupct-1941.

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