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• Title: Superintendent Banks State New York V.
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 02, 1936
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 69 KB

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LUMMUS, Justice. This case like Superintendent of Banks of New York v. Moors (Mass.) 2 N.E.2d 553, just decided, is an action to recover an assessment upon a stockholder in the Bank of United States. It is agreed that the defendant acquired ten shares before December 11, 1930, and still owns them. The trial Judge ruled in favor of the plaintiff that the certificate of the superintendent of banks of the state of New York, dated July 17, 1934, made under section 80 of the New York Banking Law (Consol.Laws N.Y. c. 2), as amended by Laws of 1934, c. 494, showing the facts authorizing an assessment, his determination to make one, and his demand in writing upon the several stockholders, was admissible in evidence. It may be, as was decided in Broderick v. McGuire, 119 Conn. 83, 101-103, 174 A. 314, 94 A.L.R. 890, that the New York statute making the certificate not only evidence but 'presumptive evidence' of the facts therein stated has no effect in the courts of other states. But the question here is merely one of admissibility, for the facts stated in the certificate are found to be true. If admissible, it supplies all that is needed to establish the liability of the defendant under the case of Superintendent of Banks of New York v. Moors (Mass.) 2 N.E.2d 553, and shows error on the part of the trial Judge in ruling that the plaintiff could not recover, and in failing to order judgment for the plaintiff. In Commonwealth v. Slavski, 245 Mass. 405, 417, 140 N.E. 465, 469, 29 A.L.R. 281, it was said that 'a record of a primary fact made by a public officer in the performance of official duty is or may be made by legislation competent prima facie evidence as to the existence of that fact.' The admission of such official records is a recognized exception to the hearsay rule. Wigmore, Evid. (2d Ed.) §§ 1630-1634; Commonwealth v. Bird, 264 Mass. 485, 162 N.E. 900; Richards v. Robin, 178 App.Div. 535, 539, 165 N.Y.S. 780. The official record of an officer of another state is admissible. Wigmore, Evid. (2d Ed.) § 1633; Miller v. Northern Pacific R. Co., 18 N.D. 19, 118 N.W. 344, 19 Ann.Cas. 1215; People v. Reese, 258 N.Y. 89, 179 N.E. 305, 79 A.L.R. 1329. If we assume that the public records of another state, to be admissible, must not only be kept under authority of law, but must be admissible by copy in that state (Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188, 193, 194, 182 N.E. 361), those conditions are satisfied in the case at bar. The banking law of New York provides for the making, recording and admissibility of the certificate. Sections 11, 72 (Consol.Laws N.Y. c. 2) as amended by Laws 1927, c. 178 and Laws 1934, c. 257 respectively and section 80, amended by Laws of 1934, c. 494. The Civil Practice Act of New York, § 367, provides for proof by 'exemplified' copy. If thereby we are limited here (Compare Portland Maine Publishing Co. v. Eastern Tractors Co., Inc., 289 Mass. 13, 193 N.E. 888) to the admission of a copy exemplified under U.S.Rev.St. § 906 (U.S.C. title 28, § 688 (28 U.S.C.A. § 688); Atchison, Topeka & Santa Fe R. Co. v. Sowers, 213 U.S. 55, 29 S.Ct. 397, 53 L.Ed. 695), the copy introduced appears to be properly exemplified, and the defendant does not argue the contrary.

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