Sands v. Saltsman , 1912 N.Y. App. Div. LEXIS 10293 ( 1912 )

PER CURIAM.

[1] It was error to receive in evidence for any purpose the record of the proceedings in the Surrogate’s Court and the findings of the surrogate in the matter of the discovery of assets belonging to the estate of the plaintiff’s intestate, instituted therein against the defendant Saltsman. "If the certificates which the defendant had obtained the money upon were in the custody of the surrogate or his clerk, a subpoena duces tecum could have produced them, without introducing in evidence the entire record in that proceeding.

[2, 3] If the defendant on the trial had succeeded in making even a prima facie case °of ownership of the certificates of deposit in controversy, or the moneys which they represented, we would feel called upon, because of such error, to reverse the judgment. The evidence, however, falls far short of showing any title in the defendant. Mere admissions by the plaintiff’s intestate, while the certificates remained in her possession, that they belonged to the defendant, or that she had agreed with him that they should be his, or that the money was his, and that he had the right to draw the money thereon, in the ab- i sence of any proof that they had been assigned, or indorsed over to him, or delivered to him, are insufficient to establish prima facie title. The proof of possession of the key by the defendant Saltsman to the trunk in which the certificates were kept, with other securities belonging to the plaintiff’s intestate, under the circumstances, was insufficient to show delivery of the certificates in question.

For the same reason, if it was error to receive the letters which the defendant wrote to his sisters, which we do not decide, the error was harmless. ”

It follows that the judgment must be affirmed, with costs.