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Simpson, et al. v. The Jersey City Contracting Co.

promissory notes, pledged by a non-resident to a resident pledgee as collateral to a loan. The levy was not upon the notes themselves, and thus the sheriff was not required to take possession of them, but upon the pledgor's intangible right to redeem the notes, or to receive from the pledgee the surplus in his hands after satisfying his lien upon them, and thus the levy was properly madein the same manner as in the case before us-under subdivision 3 of section 649 of the Code, by leaving a certified copy of the warrant, and a notice showing the property attached, with the resident pledgee. The nonresident's thing in action would be against a resident and enforcible here, and thus within our jurisdiction, and, therefore, the subject of levy under the attachment. But the difficulty is the record does not state that the pledg or's assignment is properly indorsed in blank upon the certificates; it may not be indorsed at all. We cannot assume something from nothing, affirmative acts without evidence of them; the pledgee may hold the pledgor's promise to assign. The pledgor has appeared in the action, but as it is a non-resident, without domicile, office or existence within the State, that fact adds nothing to the leviable quality of the subject-matter.

If the resident pledgee should sell the certificates and realize a surplus, the surplus would be within our jurisdiction. But the question certified does not present that situation. Nothing can be rightfully realized under this levy unless the sheriff can sell either the shares of capital stock, of which the certificates are the evidence, or such intangible rights respecting the same and proceeding therefrom as will ultimately result in compulsorily transferring the title to the stock itself to his vendee.

It has been settled by abundant decisions in this and other jurisdictions that the certificates of shares in the capital stock of a foreign corporation are mere evidences of the owner's rights in such stock, and are not the stock

Simpson, et al. v. The Jersey City Contracting Co.

itself, and although the certificates may be within this State, the stock itself is not, but is held and owned by the corporation in the foreign State, and, therefore, is incapable of seizure or levy under attachment here, and that although the right to shares thereof may be held by the owner wherever he may make the right available, still that right finds its value and quality as property in the right to require the corporation at its domicile to discharge the obligations which it has assumed and for which it holds the capital stock and assets. The sheriff can levy upon nothing which he cannot actually seize within his jurisdiction, or so constructively seize as to enable him by a sale thereof to give such title to his vendee as the debtor himself held; that is, such as will, in the case before us, give to the vendee the same right of recourse to the foreign corporation as the debtor had (Plimpton v. Bigelow, 93 N. Y., 592; Christmas v. Biddle, 13 Penn. St., 223; Winslow v. Fetcher, 53 Conn., 396; Tweedy v. Bogart, 56 Conn., 419; Ireland v. Globe Milling, &c., Co., 19 R. I., 180; Banking Co. v. Smith, 20 S. W. Rep., 690; Smith v. Downey, 34 N. E. Rep., Ind., 823; Young v. Iron Co., 2 S. W. Rep., Tenn., 202; Pinney v. Nevills, 86 Fed. Rep., 97; Cook on Stock, Stockholders and Corporation Law, par. 485. See Matter of Bronson, 150 N. Y., 1; Matter of Whiting, 15 N. Y. 27).

It is true that our law, notably section 4 of the Statutory Construction Law, in effect declares stock certificates property, and so they are wherever we are able to enforce our law, namely, within this State. As to the stock and interests therein of domestic corporations, they cannot exist, except under and subject to our laws, and, therefore, our jurisdiction is complete over them.

But we cannot enforce our law in a foreign State as to the stock of its corporations, and the interests therein of its holders, and we cannot, therefore, give title to it other

Simpson, et al. v. The Jersey City Contracting Co.


wise than by our jurisdiction over its owners. attachment is directed against property, and not against persons, and whatever control the court may exercise over all persons, resident or non-resident, who are brought within its jurisdiction, such control is not attachment process against vendible property, or interests in or through it.

It is suggested in the opinion below that the sheriff can make the sale, and the vendee can take this purchase for what it is worth. The sheriff did not attach the paper certificates, for he did not take them into his actual custody; he, therefore, cannot sell them as paper or manuscripts. Whatever he sells is intangible. He can make and deliver a certificate of sale (Code, sec. 647), but his vendee, or at least the ultimate vendee, must repair to New Jersey to recover what he supposes he has bought. Our courts cannot give him possession. The New Jersey court could give full faith and credit to our judicial proceedings by adjudging that our sheriff levied upon nothing outside of his jurisdiction, and, therefore, his certificate of sale does not give the right to possession of anything in New Jersey. We should not expose purchasers at our judicial sales to such hazards.

The question certified should be answered in the negative and the order appealed from reversed, with costs.

PARKER, Ch. J.; HAIGHT, CULLEN and WERNER, JJ., concur with GRAY, J., for affirmance; OBRIEN, J., concurs with LANDON, J., for reversal.

Order affirmed.

Davis v. Supreme Lodge, Knights of Honor.



§ $824-933.

Evidence.-Physician's certificate filed with the board of health not competent to prove cause of death.

A certificate filed by an attending physician with the board of health of a city is not competent evidence to prove the cause of the patient's death.

The provisions of the charter of the City of New York making authenticated copies of the records of the health board presumptive evidence in any court of justice of the recitals therein contained were not intended to work a repeal of, or to interfere with, the Code provisions against allowing an attending physician to disclose facts acquired by him in a professional capacity. (Decided December 11, 1900.)

Appeal from a judgment of the Appellate Division, Second Department, affirming a judgment entered upon a verdict of a jury in favor of the plaintiff.

W. R. Spooner for appellant.

Herbert A. Heyn for respondent.

O'BRIEN, J.-The defendant is a fraternal association incorporated under the laws of this State, with power to make contracts with its members for the payment of a sum of money to any beneficiary named in the contract upon the death of the member. The plaintiff's husband applied for membership in the association, was admitted and received a certificate on the 19th day of July, 1895. In this certificate the defendant agreed to pay to the plaintiff the sum of $2,000 upon satisfactory proof by her

Davis v. Supreme Lodge, Knights of Honor.

of the death of her husband, and that at the time of his death the certificate or contract was in force. On the 16th of October, 1896, the plaintiff's husband died, and she presented to the defendant sufficient proofs of death in accordance with the constitution and by-laws of the defendant. But it refused to pay the money specified in the certificate, upon the death of the member, which was $2,000, and the plaintiff thereupon brought this action to recover that sum, with interest.

The principal defense interposed was a breach of warranty, in that plaintiff's husband, in his application for membership, stated that neither of his parents or any of his paternal or maternal grandparents, or any of their descendants, so far as he knew, had consumption. The issues presented by the answers were issues of fact, and the jury found a verdict for the plaintiff, which was unanimously affirmed at the Appellate Division. Thus all questions of fact and all questions as to the sufficiency of the evidence to warrant the verdict of the jury are eliminated from the case. The only questions presented by this appeal are those that arise out of the defendant's exceptions taken upon the trial. The defendant had a right at the trial to give proof tending to show that the statement contained in the application for membership, which has already been referred to, was untrue, and it had a right to prove, if it could, that either of the parents of the member or his paternal or maternal grandparents, or any of their descendants, had been afflicted or had died of the disease known as consumption. The defendant did attempt to prove that fact, and the ruling of the learned trial court excluding certain evidence offered upon this issue, to which exception was taken, is the only substantial question which the learned counsel for the defendant has argued in this court. Although there are at least three exceptions in the record raising this question, yet they were all taken to the exclusion of proof of the same

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