If the assignment of stock became effective when delivered to the post office in the State of California, that transaction is not taxable under the provisions of the Stock Transfer Tax Law of this State, unless the surrender of the assigned certificate and reissuing of the stock and the transfer thereof upon the books of the company to make the rights of the assignee to the stock more effective, makes the transaction as a whole taxable, and if so, the tax may be paid concurrently with the completion of that transaction. The payment of the tax is not a condition precedent to the transfer. Even if the title to the stock did not pass until the assignment was received by the plaintiff through the post office at Rochester and the tax stamps should have been affixed at that time, I think the defendants are not in position to urge the failure to affix the stamps at that time as a ground for sustaining the nonsuit. Such a defense to be available must be pleaded. It was not set up in the answer, but other and quite different grounds of defense were stated.
Under such circumstances, I think the defendants were not entitled to make that defense at the trial. (Bean v. Flint, 138 App. Div. 846; affd., 204 N. Y. 153.) While the defendants’ application on trial to amend the answer in that regard was granted, it was subsequently withdrawn by the defendants. Even the objection to the evidence of the assignment and transfer of the stock was waived, because the motion to strike it out was likewise withdrawn.
I, therefore, conclude that the motion for a nonsuit was improperly granted.
Judgment affirmed, with costs.