This action was brought to recover certain stock, or the proceeds thereof, alleged to have been deposited by the plaintiff with Hatch & Foote, stockbrokers, as collateral security for the payment of money advanced in the purchase of stocks and in turn deposited by that firm with the defendant bank .as collateral security for a loan.
The complaint was dismissed, the trial court finding as a fact that the plaintiff had failed to show that the certificate of stock held by the bank belonged to him, and from the judgment entered upon this decision the plaintiff has appealed.
It appeared upon the trial, and such facts were uncontradicted, that the firm of Hatch & Foote, stockbrokers, on the 6th- of April, 1900, held a certificate (No. 18,821) for 100 shares of the preferred stock of the Union Pacific Railroad Company, as collateral security for the payment of money advanced by it to purchase for the plaintiff 100 shares of stock of the American Ice Company, which was subsequently sold at a loss to the plaintiff (after crediting a dividend received thereon) of $704; that the certificate at the time the plaintiff delivered it to Hatch & Foote stood in the name of Blake Bros., but was indorsed in blank; that according to the custom pursued by tiie firm of Hatch & Foote, whenever stock was deposited with it as collateral, the certificate was surrendered and a new one issued in the name of the firm; that on the tenth of August following, Hatch & Foote borrowed from the defendant bank $25,000, and among the collaterals deposited with the bank for the payment of the loan was a certificate of 100 shares of the preferred stock of the Union Pacific Railroad Company, but of a different number from the one which the plaintiff delivered to Hatch & Foote; that shortly after this loan Hatch & Foote became insolvent, made a general assignment for the benefit of creditors and subsequently were adjudged bankrupts, the defendant Leonard being appointed trustee in such proceeding.
It was further made to appear that at the time of such failure Hatch & Foote held three certificates of 100 shares each of the preferred stock of the Union Pacific Railroad Company, • and which they had pledged at different places as collateral security for loans — one of which concededly belonged to the plaintiff, one to the defendant Robert J. McGay, and the other to the defendant Frank *33B. McGay; that the senior member of the firm of Hatch & Foote at or immediately prior to the commencement of this action stated, according to the testimony of the plaintiff, that he had traced the plaintiff’s stock to, and the same was then held by, the defendant bank, and at the trial the counsel for the McGays stated in open court that his clients had no interest in and made no claim to the certificate held by the defendant bank.
The foregoing facts not being contradicted, we are of the opinion that the finding made by the trial court to the effect that the plaintiff had not established that the certificate of stock held by the defendant bank belonged to him, was contrary to and against the weight of evidence. We have not only the testimony of the plaintiff, which is not contradicted or questioned in any way, to the effect that the senior member of the firm of Hatch & Foote stated that he had traced the plaintiff’s stock to and the same was held by the defendant bank, but we also have, in addition thereto, .the concession made by the McGays that they did not claim such certificate. As already said, the firm of Hatch & Foote only held three certificates at the time of their failure, one of which belonged to the plaintiff and the other two to the McGays, and if the McGays had no interest in this certificate, then it certainly must belong to the plaintiff. That the number of the certificate held by the bank does not correspond to the one left by plaintiff with Hatch & Foote is of no importance in view of the custom pursued by that firm in having stock put up as collateral transferred.
Ror does the fact that the plaintiff presented his claim to the trustee in bankruptcy prevent the prosecution of this action to recover the stock or its proceeds. (Rhinelander v. National City Bank, 36 App. Div. 11.) This action was instituted, so far as appears, prior to the filing of such claim, and if it were not, it would not, in our opinion, make any difference, because the bringing of the action is sufficient evidence of an election upon the part of the plaintiff to pursue this remedy and recover the stock or its proceeds, instead of relinquishing whatever right he might have in this respect and take in place thereof whatever dividend might be made to him as general creditor in the bankruptcy proceeding. . It may be that if a dividend be declared in that proceeding, the fact that *34the plaintiff had brought this action might there be urged as a bar to his right to participate therein until after the settlement and determination of this action, but that question is not before us for consideration.
On the whole case, therefore, we are of the opinion that justice requires there shall be a new trial.
The judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event of the action.
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred ; Ingraham, J., dissented.