Stephen v. Banka

Appellate Division of the Supreme Court of New York

Stephen v. Banka

283 A.D. 938, 130 N.Y.S.2d 791, 1954 N.Y. App. Div. LEXIS 5831

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 1954

StatusPublished

This text of 283 A.D. 938 (Stephen v. Banka) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stephen v. Banka, 283 A.D. 938, 130 N.Y.S.2d 791, 1954 N.Y. App. Div. LEXIS 5831 (N.Y. Ct. App. 1954).

Pincite

Opinion

Even though the documents, upon which appellant bases her title to the bonds which she claims, seem on their face to indicate her title, and her affidavits tend to support title, the temporary receivers are warranted in asking that the proof in support of her present right to possession take a broader form than an affidavit supplemented by documents. The Special Term was, therefore, justified in the view that possession of the bonds should not be awarded summarily to claimant on the basis of motion papers and exhibits, against the objection of the receivers. We do not hold that the documents are insufficient to justify delivery of the bonds to claimant if supplemented by credible testimony which the receivers are given the right to test by cross-examination and if the receivers are also given opportunity to adduce other proof as they may then be advised. We hold merely that such inquiry is justified. We think, however, that inquiry may adequately be afforded within [939]*939the frame of the present motion without the institution of a separate plenary action. Order unanimously modified so as to refer the issue to an Official Referee, who will hold hearings expeditiously and report to Special Term and, as so modified, affirmed, without costs. Settle order on notice. Present — Peek, P. J., Dore, Callahan, Breitel and Bergan, JJ.

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Even though the documents, upon which appellant bases her title to the bonds which she claims, seem on their face to indicate her title, and her affidavits tend to support title, the temporary receivers are warranted in asking that the proof in support of her present right to possession take a broader form than an affidavit supplemented by documents. The Special Term was, therefore, justified in the view that possession of the bonds should not be awarded summarily to claimant on the basis of motion papers and exhibits, against the objection of the receivers. We do not hold that the documents are insufficient to justify delivery of the bonds to claimant if supplemented by credible testimony which the receivers are given the right to test by cross-examination and if the receivers are also given opportunity to adduce other proof as they may then be advised. We hold merely that such inquiry is justified. We think, however, that inquiry may adequately be afforded within [939]*939the frame of the present motion without the institution of a separate plenary action. Order unanimously modified so as to refer the issue to an Official Referee, who will hold hearings expeditiously and report to Special Term and, as so modified, affirmed, without costs. Settle order on notice. Present — Peek, P. J., Dore, Callahan, Breitel and Bergan, JJ.

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Bluebook (online)

283 A.D. 938, 130 N.Y.S.2d 791, 1954 N.Y. App. Div. LEXIS 5831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephen-v-banka-nyappdiv-1954.