BOWKER v. HAIGHT & FREESE CO.

BOWKER v. HAIGHT & FREESE CO. (Circuit Court, S. D. New York. August 14, 1905.) Claim of James Blair for return of 75 shares of U. S. Steel common and other stocks. Walter P. Irwin, for petitioner. Franklin Bien, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. The transaction through which these stocks came into possession of defendant took place in Philadelphia. The moving papers admit that there are entries in the books of defendant in Philadelphia which apparently indicate that purchases of stock were made for Blair, that defendant carried the same for him, and that upon closing out of the transactions he was indebted to defendant. The receivers have the certificates of stock in this jurisdiction, but there are no entries of the transactions in the New York books of Haight & Freese Company. Defendant’s counsel insist that Blair is indebted to them, while Blair’s counsel contends that the entries in defendant’s books are fictitious, and presents the affidavit of an accountant appointed by receiver in Philadelphia to that effect. This court, however, cannot assume, in advance of substantive proof, that the entries are fictitious, nor is it concluded by the affidavit of a receiver’s accountant. Defendant is entitled to its -day in court on that issue, and it should not be decided on conflicting affidavits. It may appropriately be passed upon on evidence taken before a master, but it would seem that such master should sit in Philadelphia, not here. The petitioner resides in Philadelphia, the transactions took place there, the books purporting to record them are there, the entries in them were made there by. persons who presumably lived there. The petition to return the certificates is therefore denied, without prejudice to’a similar application to the Philadelphia receiver, and the receivers here are directed to transmit the certificates, with a copy of this memorandum, to the Philadelphia receiver.