Bond v. Broderick

232 A.D. 468, 250 N.Y.S. 343, 1931 N.Y. App. Div. LEXIS 13849

Opinion

Per Curiam.

Petitioner, the committee of an incompetent, deposited funds in The Bank of United States, an authorized depositary for trust funds. This bank is now being liquidated by the Superintendent of Banks under the provisions of the Banking Law. The petitioner has been granted a peremptory mandamus order directing the Superintendent to turn over the balance on deposit in his account. No authority exists for the granting of this relief.

The Banking Law (§ 188, subd. 8) gives a preference over general depositors to guardians, committees, trustees and others who make deposits under court orders in banks authorized to act as depositaries for such funds. These deposits are not to be considered as bailments of specific money. There is nothing in the Banking Law to indicate that the relation between such depositors and the bank is to be regarded as other than the usual debtor and creditor relationship. The Banking Law also provides (§§ 72 to 78,

Footnotes

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* inclusive) a comprehensive scheme governing the orderly liquidation of a bank. Summary orders to pay over to committees and other fiduciaries are not prescribed and should not be granted.

The petitioner’s claim should be enforced in the liquidation proceeding in the manner provided by the Banking Law. In such proceeding he will be entitled to a preference and may obtain payment in common with other creditors of the same class.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Present ■—Finch, P. J., McAvoy, Martin, O’Malley and Townley, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied.

Section. 72, as amd. by Laws of 1930, chap. 664; since amd. by Laws of 1931, chap. 310. Sections 73-78, as amd. by Laws of 1930, chap. 678; §§ 73, 74 since amd. by Laws of 1931, chap. 191; § 76 since amd. by Laws of 1931, chap. 310.—• [Rep.