Ellis v. Phenix National Bank

12 Daly 177

• Court: New York Court of Common Pleas
• Decided: June 25, 1883
• Status: Published

Opinion

Charles P. Daly, Chief Justice.

The evidence sustains the conclusion of Judge Van Brunt that the receiver, on the 5th of December, 1870, put up for sale, and the plaintiff bought for $100, a balance due from the, defendant to the Georgetown Bank of $5,629.28, which was purchased for this small sum, being regarded by the receiver as worthless. Why he so regarded it does not appear in the testimony, beyond the fact, which probably explains his impression, that previously, on the 5th of January, 1865, a balance of $12,117.38, remaining in the defendants’ bank to the credit of the Georgetown Bank, was seized, under proceedings for its condemnation as forfeited to the United States, and under which proceedings a judgment had been rendered of condemnation and forfeiture. The receiver found, by the books of the Georgetown Bank, that there was a balance in its favor in defendants’ bank of $129.23; and that a draft had been sent by that bank to the defendants’ bank, for collection, for $5,500, which the receiver supposed had been collected, but which was not the fact. He assumed therefore that the balance in the defendants’ bank to the credit of the Georgetown Bank consisted of these two sums, amounting to $5,629.23, which he explained to the plaintiff before the sale. This draft for $5,500 was on the list of assets,, and markéd worthless; but the $129.23 was not.

The receiver testified that in selling the draft for $5,500, which, as I have said, he supposed had been collected, “ all other claims on the Phenix Bank were sold at the same time,” and Ellis, the plaintiff, being the purchaser, as above stated, the receiver gave him a certificate in writing, stating that among other choses in action, belonging to the Bank of Georgetown, South Carolina, was a debit balance of $5,629.23, due by the Phenix Bank of New York, somewhere at or about the commencement of the late war, “which said indebtedness,” the certificate declared, was purchased by the plaintiff.

Upon this state of facts, Judge Van Brunt came to the conclusion that the plaintiff bought the balance, whatever it was, up to the sum of $5,629.23, and from whatever source it may have originated. In his opinion, he says, the receiver’s certificate of sale clearly shows this to have been the understanding; and, I think, in this conclusion he was correct. This being the fact, it could, as Judge Van Brunt held, in no way impeach the title of the plaintiff that the receiver was mistaken as to the manner in which the balance was made up. Having sold, for a good consideration, to the plaintiff, what he regarded as a debit balance of $5,629.23, due by the defendants’ bank at the commencement of the war to the Georgetown Bank, the sale transferred to the plaintiff whatever indebtedness existed up to that amount, and entitled him to recover from the defendants the actual balance, which was $2,117.38, with interest from the commencement of the suit.

The judge was also right in holding that the confiscation proceedings, under which the balance remaining in the defendants’ bank was seized and condemned as forfeited to the United States, constituted no defense to this action, the court, in this judgment of condemnation and forfeiture, having acted wholly without jurisdiction. There is nothing in the act of August 6th, 1861, entitled, “ An act to comfiscate property used for insurrectionary purposes,” or in the subsequent act of July 17th, 1862, entitled, “An act to suppress insurrections, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” authorizing the confiscation of the property of a corporation. The 5th section of the latter act specifies six classes of persons whose property may be seized under it, and in this enumeration corporations are not included by name or necessarily by implication.

The respondent suggests that the opinion of Mr. Justice Strong, in The Planters’ Bank v. The Union Bank (6 Wall. 496), that under neither of the aboAre acts “was the propertAr of a banking institution made confiscable,” was merely obiter ; but, as was said by Mr. Justice Andrews, in delivering the opinion of the court in Bisley v. The Phenix Bank (83 N. Y. 335), “it cannot be supposed in view of the importance of the subject and the frequent occasions upon which the court had been called upon to consider the scope and effects of the confiscation acts, that the remarks of Mr. Justice Strong upon the subject, in an opinion in which the whole court concurred, were made without full consideration or without the acquiescence of his associates.”

This point, also, was not essential to the decision of our own Court of Appeals in Risley v. The Phenix Bank (supra), but in that case the same opinion was expressed by Judge Andrews in delivering the opinion of the court, and, as we understand his language, with the concurrence of his associates.

The question, however, is directly involved in the ease now before us. It will be unnecessary, in passing upon it, to set forth our reasons more fully, as they are given at length in the opinions of Mr. Justice Strong and Mr. Justice Andrews in the cases above cited. It will be sufficient to say that we are of the same opinion, and that the judgment of the Special Term should be affirmed.

J. F. Daly and Beach, JJ., concurred.

Judgment affirmed.

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The judgment entered upon this decision was affirmed by the Court of Appeals May 9th, 1884 (see 06 N. Y. 630).