Grocers' National Bank v. Clark

48 Barb. 26, 32 How. Pr. 160, 1866 N.Y. App. Div. LEXIS 172

• Court: New York Supreme Court
• Decided: January 2, 1866
• Status: Published

Opinion

By the Court, Clerke, J.

The only question, among those presented on this motion, of which I entertained any doubt, on the argument, is that relating to the assignability of the demand.

[New York General Term, January 2, 1866.

This is nothing more or less than an action to recover damages for the fraudulent misapplication or conversion of property by an officer or agent of a banking association. If the property of an individual were thus misapplied or converted, there would be no doubt that the right to recover damages against the wrongdoer would survive to his executors or administrators, (2 B. 8. 746, § 1, 5th ed. /) it would be assets in their hands. If he had assigned it, the claim would be recoverable by his assignee. In other words, it is assignable. Why, then, should not a claim for the same kind of wrong be equally assignable, and be equally deemed assets when the wrong is committed against a banking association. The attribute of assignability is not confined to rights of action belonging to natural persons; it extends with equal effect to those belonging to artificial persons.

The right of action, then, in this case passed as assets to the plaintiffs from the Grocers’ Bank to the Grocers’ National Bank, by operation of the act of 1865.' (Laws of 1865, p. 171, § 6,)

The order should be affirmed; but I think the ends of justice will be sufficiently answered by holding the defendant to bail in $20,000, &c.

Ingraham, GlerTce and Geo. G. Barnard, justices.]