(dissenting.)' This action was brought by plaintiff, claiming that her testator was the owner of 300 shares of the stock of the Chicago, Milwaukee & St. Paul Railroad, which, without right or authority, were pledged by the firm of O. M. Bogart & Co., with whom said shares were deposited; with the firm of Savin & Vanderhoof, as collateral, with other securities, for a loan of $50,000, which securities were subsequently sold; and the judgment demanded is the surplus realized by the sale of the pledged property over the amount advanced by the said pledgees to the pledgors thereof, O. M. Bogart & Co. The latter firm, almost immediately after the pledge of the stock in question, made a general assignment for the benefit of creditors to the defendant Wheeler. The questions presented by the pleadings were: First. Had Hollis L. Powers, plaintiff’s testator, title to the stock? Second. Did O. M. Bogart & Co., without his consent and authority or right, pledge such stock? Third. Can the firm of Savin & Vanderhoof hold the stock or apply the surplus realized upon the sale thereof upon account of any other indebtedness due them from O. M. Bogart & Co. as against the plaintiff? Fourth. Is the defendant Wheeler, upon the facts proven, entitled to judgment for the surplus realized upon the sale of other securities pledged for a second or other loan made by the said firm of Bogart & Co. ? The evidence, we think, establishes the fact that, if competent proof was presented to prove Powers’ title to the stock, the referee was justified in concluding that the same was pledged by Bogart & Co. without right or authority. In respect to the right of Savin & Vanderhoof to apply the surplus to any other indebtedness than the specific loan made on the faith of the securities, this question has been settled by this court upon the former appeal, holding that they were “entitled to reimburse themselves for payments made on the strength thereof, but not to a greater extent.” The solution of the question as to whether the defendant Wheeler was entitled to a judgment for the surplus realized upon the sale of the securities pledged for the second loan must depend upon whether or not in tins action the rights, as between the defendants, to such surplus can be determined. Section 1204 of the Code of Civil Procedure provides: “Judgment may be given for or against one or more defendants. It may determine the ultimate rights of the parties on the same side, as between themselves; and it may grant to a defendant any affirmative relief to which he may be entitled.” In construing this section it has been held that a defendant cannot tender an independent issue between himself and a codefendant which is not raised by the complaint. Lansing v. Hadsall, 26 Hun, 619; Payn v. Grant, 23 Hun, 134; Hall v. Ditson, 5 Abb. N. C. 196, 55 How. Pr. 19. The complaint alleged that Powers had in the custody and possession of Bogart & Co., who were bankers and brokers, engaged in business in this city, 300 shares of St. Paul stock, and .that without his knowledge and consent they pledged the said stock, together with other stock of the defendants, to Savin & Vanderhoof, for a call loan of $50,000. It appeared by the evidence that the surplus realized over and above the amount of loan of $50,000 upon the sale of the collateral was $4,500, and it was to reach this sum that the plaintiff brought this action. The evidence, however, showed, as the amended answer of the defendant Wheeler alleged, that there were two separate and distinct loans of $50,000 made by Savin & Vanderhoof to Bogart & Co., upon entirely different securities, and that the stock claimed by Powers was included in the collateral pledged as security for the first loan of $50,000. Itappeared that there resulted from the so-called “first loan,” for which the plaintiff’s securities were pledged, a surplus of $4,500, and from the second loan the sum of $3,518.75; and it is for this latter amount, upon the evidence, that the defendant Wheeler, as assignee, insists that he is entitled to a judgment.
We do not think that the independent claim for which the defendant Wheeler may have a cause of action against Savin & Vanderhoof, which is entirely independent and in no way connected with the demand of the plain*345■tiff, can be litigated, or the rights of the parties determined, in this action. The contest between the latter firm and Wheeler over the surplus on the ■second loan has no connection whatever with the contest waged between the plaintiff and the defendants over the surplus on the first loan. The subject-matter in both suits is entirely separate and distinct,- and we do not think that section 1204 was intended to give any such right as to permit one defendant to litigate a separate and distinct claim which he might have against -another codefendant with respect to a matter with which the plaintiff has no -concern, and with reference to which no allegation is contained in his complaint. Another position taken by the defendant Wheeler has already been -disposed of adversely upon the former appeal, namely, that plaintiff’s testator would only be entitled to such proportion of the surplus arising out of the loan in which his 300 shares of St. Paul stock entered as the proceeds of such stock on sale bore to the whole value of all .the securities in that particular loan.
This leaves us to briefly consider the first, most important, and, upon the -evidence, the most difficult, question presented,—as to whether the evidence ■offered to support proof of plaintiff’s title to the stock was competent. The title to such stock may be said to rest mainly, if not entirely, upon entries from the loan book of O. M. Bogart & Co., which, if competent, with the other evidence in the case, would be sufficient to justify the conclusion reached by the referee; but the absence of such entries from the record would neces-sitate the conclusion that the burden placed upon the plaintiff of proving title had not been sustained. The testimony bearing upon such entries shows in brief that Bogart, Jr., who sent the securities to Savin & Vanderhoof, made memoranda of the loans on a stock exchange ticket called “tickets,” which memoranda he testified were correct: that these memoranda on the tickets or ••slips were the only memoranda made of the loans in the first instance. These memoranda were not produced upon the trial, the evidence showing that they were made for temporary purposes only, and that, when entries were made therefrom, into the books of the firm, no attention was thereafter paid to them. These particular memoranda were not shown, however, to have been lost, although evidence was given that a search was made for them; and in response to the notice to produce, a statement was made by one of the attorneys that a search had been made for them, but they could not be found. It nowhere appears that these memoranda were handed to the bookkeeper, •and that the entries in the books objected to were copied therefrom. Bogart, Jr., stated that he had no present recollection of what he put on the slips; nor does he know whether they came into the possession of Mr. Townsend after he made them, who it is conceded made the entries in the book. His best recollection was that he placed them in an envelope, and that the envelope was with the books, and that they were so left for the cashier, Townsend, to •enter in the loan book. Townsend remembers nothing about the original memoranda, and his testimony shows that the entry by him in the loan book was not made contemporaneously, but was made after the failure of Bogart ■& Co., and after Townsend had come back from being absent, which he states might have been a week after the failure.
The referee, in stating his reason for the admission of this loan entry in evidence, so far as the facts for its admission were concerned, summarizes them quite correctly. “ The testimony seems to me to show that Mr. Bogart made slips of the transaction, and that the slips cannot now be prod.uced; that he had charge of the negotiation of the loans, and that slips were made in the usual course of business, and at the same time he made a memorandum on the loan envelope of the collaterals therein. The transaction is entered in the loan book of O. M. Bogart & Co., in Mr. Townsend’s handwriting, and the loan book is shown to be the loan book of O. M. Bogart & Co., and that the memorandum on the loan envelope, made at the time of the transaction. *346corresponds with the entry in the loan book in Mr. Townsend’s handwriting. Mr. Townsend testifies that he either copied the memorandum from slips, (the temporary stock exchange slips,) or that it was called off to him; and it does not appear that there was any other source from which Mr. Townsend could get the entries. In other words, there is no evidence to show that there was any other memorandum except Bogart’s slips from which Mr. Townsend could have made the entry in the loan book, and the memorandum or entries on the envelope correspond to the entries in the loan book.” It should be remembered, however, in this connection, that the correspondence between the memorandum on the loan envelope and the entry in the loan book is not complete. In the loan book entry, at the left of the “Three hundred St. Paul,” are the initials “H. L. P.,” which, it was testified, were the initials of and stood for Hollis L. Powers, and were set opposite to this entry to indicate that the 300 St. Paul stock belongs to him; and it is upon this entry that the proof of the title to this stock being in Hollis L. Powers depends. Upon the loan envelope sent to Savin &Vanderhoof the 300 St. Paul stock is mentioned, but thez-e is nothing thereon to indicate, either by the letters “H. L. P.” or by any other initials or mark, to whom such stocks belonged. This evidence, the respondent claims, is admissible upon the rule laid down by the court of appeals as to the admission of account books, in the case of Mayor v. Second Ave. Ry. Co., 102 N. Y. 572, 7 N. E. Rep. 905. A reading oí the opinion in that case will show that the court was impressed with the view that it was extending the rule as to cases in which account books in favor of the pai’ty will be admitted ; and solely upon the facts in that ca.se appearing such evidence was held to be competent. It is unnecessary for us, in view of the conclusion at which we have arrived, to point out the distinction appearing in regard to the facts in that case and the one at bar, which we tlzink are sufficiently clear and distinct to justify the view, were it not for another principle which we think applicable to such evidence; that it should not have been received because incompetent. In other words, had the evidence in this case objected to been entries in favor of Bogart & Co.,—which was the question presented in Mayor v. Second Ave. Ry. Co., supra,—it would have been error to receive such entry. Here, however, the entry is resorted to by the plaintiff, and is relied upon as a declaration against Bogart & Co., in respect to the ownership of these 300 chores of stock; and, as whatever rights the defendants can assert were derived from Bogart & Co. alone, they are equally admissible against such defendants. In Greenleaf on Evidence, (Bedfield’s Ed.)p. 144, it is said: “There are two classes of admissible entries, between which there is a clear distinction, in regard to the principle on which they are received in evidence. The one class consists of entries made against the interest of the party making them, and these derive their admissibility from this circumstance alone. It is therefore not material when they were made. The testimony of the party who made them would be the best evidence of the fact; but, if he is dead, the entry of the fact made by' him in the ordinary course of his business, and against his interest, is received as secondary evidence in a controversy between third persons. ” This distinction between entries in favor of and entries against the persozi in whose books the entries are made, finds support in the case of Adams v. Bowerman, 109 N. Y. 23, 15 N. E. Rep. 874, where, in an action against a sheriff for an alleged unlawful taking, the latter justified under process against the firm from which plaintiffs acquired title, alleging that said firm acquired title by purchase on credit, induced upon false representations as to its solvency; and it was held that the books of the firm were proper evidence against plaintiffs upon the question of solvency, and knowledge thereof on the part of the members of the firm, and that the rejection of such evidence was error. This case we regard in principle as applicable to the question here presented.
The title or right of the defendants to'these 300 shares of stock was derived *347through Bogart & Co., and entries in their account books, if shown to have-been made in the regular course of business, even though not contemporaneous, would be admissible, not in their favor, but against them and those claiming under them. The suggestion that upon the facts appearing these entries were made after the failure, and when the firm had ceased to do-business, we regard as being without force, for the reason that, in connection with that fact, it appears that subsequent to the failure the bookkeepers of Bogart & Co. were for some days engaged in making up and balancing the same with a view of determining the status of that Arm, and the entries objected to were made in the course of such business. Where a failure occurs, and matters relating to the business of a failing individual or Arm are-not entered upon their books, it is customary, in the ordinary course of business, to have such matters and entries relating thereto inserted for the purpose of determining the condition of the firm. We think, therefore, that the referee correctly ruled in admitting such entry. It is unnecessary for us, in view of the former appeal, and the facts appearing upon the two trials, to-advert further to the law or facts which control many of the subsidiary questions raised upon this appeal, it being sufficient, after having disposed of the-principal questions presented by this appeal, to say that after an examination-of the voluminous record, and the other objections made to the affirmance of the judgment, we do not regard any of them as well taken, and our conclusion is that the judgment appealed from should in all respects be affirmed,, with costs..