Opinion
July 27, 1970
In an action for a judgment declaring the rights to ownership of stock of the defendant corporation, to enjoin corporate waste and liquidation, and for an accounting and damages, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated March 4, 1969 and made after a nonjury trial, which decreed, inter alia, that plaintiff does not have any right to ownership of stock in said corporation. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The questions of fact have not been considered on this appeal. The sole basis of the trial court's denial of the relief requested by plaintiff was the alleged execution by plaintiff of a document by virtue of which plaintiff waived and released any right she might have had to any relief in this action. Plaintiff's mother also signed the document and it was introduced into evidence, on the mother's cross-examination, upon her admission that her signature was on the document. However, it nowhere appears upon the record that plaintiff's signature was authenticated. Thus, as to plaintiff, the document must be deemed not to have been admitted. In order for the presumption of regularity, which attaches to production of a release, to be sufficient to establish a prima facie case, the party offering it must prove the releasor's signature on the document ( Fleming v. Ponziani, 24 N.Y.2d 105, 111). Since the denial of relief was based upon the upholding of a defense founded upon a document not in evidence, the judgment should be reversed and a new trial held. Hopkins, Martuscello, Latham and Brennan, JJ., concur; Rabin, Acting P.J., dissents and votes to affirm the judgment, with the following memorandum: I am of the view that plaintiff, in her brief, virtually concedes she signed the release and that her only objection was that the release was the product of fraud and undue duress. Accordingly, the release was in evidence and properly considered by the trial court.