STATE BY PARSONS v. Otis Elevator Co.

92 A.2d 385, 10 N.J. 504, 1952 N.J. LEXIS 267

• Court: Supreme Court of New Jersey
• Decided: November 10, 1952
• Status: Published

Opinions

The opinion of the court was delivered by

Jacobs, J.

In 1949 the plaintiff State of New Jersey duly instituted its proceeding in the Chancery Division under L. 1946, c. 155, as amended (R. 8. 2:53-15 et seq.), against the defendant Otis Elevatcr Company to escheat certain personal property in its custody or possession, including shares of its corporate stock registered in the name of Prank C. Rhodes and the dividends thereon. In 1950 the defendant Abraham Grenthal, substituted receiver of J. B. Skehan & Co., claimed ownership of the Rhodes stock and dividends and in 1951 filed an answer asserting the basis of his claim. After trial the Chancery Division found that Grenthal had no valid claim and entered judgment declaring the personal property in the custody or possession of Otis Elevator Company to have escheated to the State.' No appeal herein was taken except by Grenthal who duly filed his notice of appeal to the Appellate Division; his appeal has been certified to this court on its own motion.

In 1902 Certificate No. 1070 representing 35 shares of Otis Elevator Company stock was registered on the company’s books in the name of Prank C. Rhodes, Bank of America, 44 Wall Street, New York, N. Y. Rhodes was an employee of the bank. A dividend check dated April 15, 1904, payable to Prank C. Rhodes, was cashed; no later dividend checks were ever cashed. Under date of October 20, 1909 the defendant Otis Elevator Company received a letter on the stationery of the Bank of America and signed Prank C. Rhodes, which returned a dividend check and stated:

“The certificate for the shares, which apparently still stand in my name upon your books, was endorsed by me and delivered to A. H. Vanderpoel, Esq., as Receiver of J. B. Skehan & Co., a number of years ago, and I have no further interest therein. I shall be obliged if you will note this fact upon your books in order that you may avoid sending me checks for future dividends, in the event that the present owner continues to omit to have the shares transferred.”

There is no additional evidence to indicate that Certificate No. 1070 was in fact delivered to Vanderpoel. The original certificate has never been found, Vanderpoel never took anjr action bearing thereon, and the shares at all times remained registered in the name of Prank C. Rhodes. Nothing in the available records of the receivership of J. B. Skehan & Co. actually supports the position that Vanderpoel was entitled to or did receive the certificate. In January 1908 a stipulation that the receivership action “be discontinued without costs” was signed by the receiver and his attorney, as well as by the attorneys for the parties plaintiff and defendant and the bonding company, and in February 1908 an order that the action be discontinued without costs was entered on motion of the receiver’s attorney. Unless dereliction on the receiver’s part is to be assumed, it might well be inferred that the receiver then retained no assets and that he either never had Certificate No. 1070 or had received it merely for transmission to another (perhaps a customer of the brokerage house of J. B. Skehan & Co.) as its rightful owner and had duly delivered it.

After the entry of the order of discontinuance in the receivership action, no further proceedings were taken therein until 1950 when Albert Lowenfels, as administrator of the estate of David Aaron, filed a petition for the appointment of a substituted receiver. His petition alleged, upon information and belief, that David Aaron, who died in 1896, was a proved creditor of J. B. Skehan & Co. which went into receivership in 1895, that the plaintiff and the defendant in the receivership action effected a discontinuance and “virtual termination of the receivership” on February 28, 1908 without notice to creditors, that there is an asset still existent arid unadministered, and that a substituted receiver should be appointed with all the power and authority of the original receiver. On October 25, 1950 Grenthal was appointed by the New York Supreme Court as substituted receiver and thereafter asserted his claim to the Ehodes Certificate No. 1070 and its increments, including stock dividends and split-ups and cash dividends. The answer filed by him in the lower court set forth, in accordance with B. 8. 2:53-22, substantially the following alleged circumstances in support of his claim of ownership:

General Electric Company and Sprague Electric Company had made arrangements for the exchange of securities; Sprague stockholders were to deposit their shares with the trustee United States Mortgage & Trust Company for delivery to General Electric and receive General Electric Bonds and Otis Elevator Company stock which General Electric held or was obtaining; on or about September 22, 1902 the Bank of America and its nominee Prank C. Rhodes deposited its holdings in Sprague with the trustee in accordance with the aforementioned arrangements; thereafter the trustee surrendered Otis stock which it had received from General for transfer and Certificate No. 1070 was issued in the name of Prank O. Rhodes, care of Bank of America, at 44 Wall Street, New York, N. Y.; on or about September 25, 1902 the trustee delivered Certificate No. 1070 and General bonds to the Bank of America; the Bank of America was a secured creditor of J. B. Skehan & Co. and obtained a court order confirming its right to sell its security conditioned upon its agreement to transfer any surplus to the receiver of J. B. Skehan & Co.; the debt of J. B. Skehan & Co. was paid in full and Bank of America had a surplus available for transfer to the receiver; accordingly, the Bank of America directed its nominee Prank C. Rhodes to endorse Certificate No. 1070 to Vanderpoel as receiver; Vanderpoel received the certificate but failed to effect a transfer and died in 1911 "without having accounted for his acts and proceedings as Receiver of the firm of J. B. Skehan & Co. and without leaving any trace of the records of the receivership estate or any unadministered assets remaining on hand. No trace of the aforesaid Certificate No. 1070 of Otis Elevator Company or other written evidence of the receivership’s title to the 35 shares represented by said certificate can be found.”

At the trial Grenthal sought to establish the foregoing, but because of the long lapse of time he was unable to produce any one having first-hand information. His sole witness was Bernard Cowen, a New York attorney who had conducted an examination of such records as remained available. The Chancery Division found, and we think rightly, that his testimony fell far short of establishing the essential links to the chain of events asserted in the answer 'in support of Grenthal’s claim of ownership. Thus, no evidence whatever was produced to indicate that the Bank of America ever held Sprague or Otis shares in its J. B. Skehan & Co. collateral account, or that it liquidated and satisfied the account and transferred the Otis stock to the receiver as surplus. Indeed, the available receivership records disclose that shortly after the appointment of Yanderpoel as receiver for J. B. Skehan & Co. the Bank of America filed a verified petition for authority to sell the collateral in its J. B. Skehan & Co. account.' The schedule of collateral attached to the petition listed various bonds and stocks but did not include any Sprague or Otis stock. Although not asserted in his answer, Grenthal’s brief now suggests that the Sprague and Otis stock might be traced from Interior Conduit & Insulation Co. bonds which did appear on the schedule. The only supporting bits of evidence referred to are items said to have appeared in a newspaper called the Chronicle, which stated that a committee of Conduit stockholders had issued a circular recommending that- the property of Interior be sold to Sprague, Conduit stock to be exchanged for Sprague stock and Conduit bonds to be redeemed in cash. We do not consider that this furnishes any evidential basis for Grenthal’s suggestion that the Interior bonds listed in the schedule were exchanged for the Sprague stock which later produced the Otis stock; furthermore, we agree with the lower court’s ruling that the newspaper was not admissible in evidence to establish the truth of its assertions. Cf. Cowen v. Bloomberg, 66 N. J. L. 385, 387 (Sup. Ct. 1901). We are not impressed with Grenthal’s contention that in view of the circumstances and particularly the lapse of time, ordinary evidential restrictions ought to be relaxed; it seems to us that the difficulties of proof may largely be placed at the doorstep of the creditors represented by Grenthal who permitted over four decades'to elapse before looking into their debtor’s receivership which had been virtually terminated in 1908.

When the State of New Jersey instituted its action in 1949 the Rhodes stock had been unclaimed for 40 years and presumptively was abandoned and available for appropriation for the common good of the citizens of the State. State v. Standard Oil Co., 5 N. J. 281 (1950) affirmed 341 U. S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951). During the pendency of the proceeding and indeed for some time thereafter (R. S. 2:53-31), ownership of the stock could be claimed on behalf of Rhodes or an apparent stranger such as Grenthal. But the mere claim of ownership by such an apparent stranger in nowise established its validity. As in comparable litigation, he had the claimant's burden of clearly establishing by competent evidence that he was the rightful owner and presently had a valid claim as such. See Maddock v. Connolly, 82 N. J. Eq. 533, 534 (Ch. 1913) affirmed 82 N. J. Eq. 609 (E. & A. 1914); Zuckermandel v. Zuckermandel, 135 N. J. Eq. 598 (Ch. 1944). In the instant matter the lower court made the factual finding that Grenthal had not established his claim, and our review of the record has led us to the conclusion that its finding should not be disturbed. See Rule 1:2-20; McGowan v. Peter Doelger Brewing Co., 10 N. J. Super. 276, 281 (App. Div. 1950).

On his appeal Grenthal relies primarily on the contention that the letter of October 20, 1909 from Rhodes to Otis was sufficient, without any additional proof, to establish a valid claim to the Rhodes stock in Yanderpoel as receiver and in Grenthal as his successor. The letter did not in terms purport to, and did not in fact, constitute a present assignment of the certificate. At best it was a single item of hearsay evidence admissible as a declaration against interest by Rhodes that several years earlier he had endorsed the stock and had delivered it to Yanderpoel. See 5 Wigmore, Evidence (3d ed. 1940), § 1455. In the light of all of the other circumstances presented it was insufficient to compel a factual finding by the trial court that Yanderpoel as receiver was -entitled to and had actually obtained the stock as legal and beneficial owner but had wrongfully failed to account therefor to creditors of J. B. Skehan & Co. Cf. Maddock v. Connolly, supra; Zuckermandel v. Zuckermandel, supra. See Beacom v. Robison, 157 Pa. Super. 515, 43 A. 2d 640, (1945), where the court applied the established rule that in the absence of proof to the contrary it would be presumed that a public official had not violated his duty; in the instant matter Yanderpoel, as receiver, would appear to be entitled to the benefits of a similar presumption.

Finally, Grenthal seeks to attack the judgment entered in the lower court on the ground that the "State has not proved the necessary jurisdictional and statutory conditions of the Escheat Act and the allegations of its alleged-cause of action.” In view of the lower court’s finding, which we sustain, that Grenthal had not established any valid claim to the Ehodes stock, he is in no position to question the sufficiency of the State’s proofs as against other defendants who have not appealed. Cf. In re Atlantic City, 3 N. J. Super. 62, 63 (App. Div. 1949). Furthermore, the pleadings of the State and Otis set forth the essential and undisputed jurisdictional facts bearing on the Ehodes stock within the requirements of R. S. 2:53-15 et seq., and an appropriate stipulation of facts was entered between the State and Otis. At the trial the pleadings were admitted into evidence without objection by Grenthal, and the stipulation was likewise admitted, although counsel for Grenthal pointed out that he was not a party to the stipulation and was not bound thereby. The State then rested and Grenthal moved to dismiss the proceeding on the sole and clearly invalid ground that he had asserted a claim to the Ehodes stock, though then unproved. The motion-was denied and the remainder of the trial was devoted entirely to Grenthal’s attempt to prove the validity of his claim. No question was raised by Grenthal in the trial court with respect to the State’s failure to introduce further evidence in support of its complaint and Grenthal may not raise that issue for the first time here. See State v. Jones, 4 N. J. 207, 214 (1950), rearg. den. 4 N. J. 374 (1950).

The judgment below is affirmed.