Wallach v. Stein

• Decision Date: 04 May 1926
• Docket Number: No. 419.,419.
• Citation: 133 A. 81
• Parties: WALLACH v. STEIN.
• Court: New Jersey Supreme Court

133 A. 81

WALLACH

v. STEIN.^*

No. 419.

Supreme Court of New Jersey.

May 4, 1926.

(Syllabus by the Court.)

Appeal from District Court of Newark.

Replevin by Sol. J. Wallach against Louis Stein for stock certificates. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued January term, 1926, before PARKER, MINTURN, and BLACK, JJ.

Harry Unger, of Newark, for appellant.

Philip J. Schotland, of Newark, for appellee.

PARKER, J. The suit was in replevin, for certain certificates of corporate stock; but the case was tried below, and is argued here, on the theory that the res in dispute is not so much the two printed or engraved certificates, as the interest in the corporation represented by them. The question involved is the validity or otherwise of a levy made by the sheriff under an execution; and, in the view of counsel, this turns on the applicability and construction of the "Uniform Stock Transfer" Act of 1916 (P. L. p. 398; C. S. Cum. Supp. p. 690 et seq.). Prior to that act, the procedure in levying on corporate stock had been well settled, both by statute and decision. C. S. p. 2244, § 4 et seq.; Princeton Bank v. Crozer, 22 N. J. Law, 386, 53 Am. Dec. 254; Voorhis v. Terhune, 13 A. 391, 50 N. J. Law, ICO, 7 Am. St. Rep. 781; Mulock v. Ulizio (N. J. Sup.) 131 A. 622. In the last-cited case an attack was made on the constitutionality of the act of 1916, which, for reasons stated in the opinion, it was unnecessary to decide. The point was called to the attention of counsel at the argument of the present case, but was not then argued, nor has it since been briefed. Consequently, we have not considered any constitutional phase of the matter, but confine ourselves to the points argued.

The plaintiff appellant was the purchaser at execution sale. The levy was made by the sheriff at the office of the corporation and without seizure of the certificates—i. e., in the manner customary before the act of 1916 —and apart from that act no objection is made to the regularity of the procedure. The trial judge, sitting without jury, at first held that plaintiff had acquired a good title to the stock, but later, after act of 1916 had been called to his attention, changed his ruling and gave judgment for defendant.

The language of the pertinent provision of the act of 1916 has already been set forth in Mulock v. Ulizio, supra. It seems, plainly enough, to require actual seizure of the certificate as a condition precedent to a valid levy, and in fact w...