(dissenting). It appears that the appellants at the close of business on December 10, 1930, were short thirty-six shares of stock of Bank of United States, and that on December 11, 1930, the certificate of the appellants for fifty shares thereof was given to a third party (Schwartz), in satisfaction of his purchase on the previous day of a like number of shares. Under such circumstances I am of opinion that the appellants have shown sufficiently that on December 10, 1930, before the bank was closed and the Superintendent of Banks had taken possession of it, they had divested themselves of all interest in and to the shares purchased from the respondent within the purview of Broderick v. Aaron (264 N. Y. 368).
I accordingly dissent and vote for the reversal of the judgment and order appealed from and for the granting of the appellants’ motion for summary judgment on the cross-claim and the denial of the respondent’s motion for like relief.