In re Jarmulowsky

258 F. 231, 169 C.C.A. 297, 1919 U.S. App. LEXIS 1192

• Court: Court of Appeals for the Second Circuit
• Decided: May 14, 1919
• Docket: No. 161
• Status: Published

Opinion

PER CURLvm.

f 1 ] That the Jamrulowskys in receiving this money acted in a fiduciary capacity, and that the person intrusting such money to them tnuy on tracing the same into the possession of the trustee in bankruptcy reí-,.ft it in solido, is sufficiently shown by our recent decision in Re 254 Fed. 770, - C. C. A. _.

As to the statute"relied j,.. may paral out that there is in this record no evidence wliatevra- that ike bankrupts ever deposited any securities with the superintendent of 'banks or possessed any investments of the kind contemplated by the act; but, assuming the existence of such deposit or investment, we are of opinion:

1. The statute was not intended to and does not take away from persons dealing with a private banker as “depositoi-s” or ‘“transmitters” any rights or privileges, legal or equitabk. r-Mch by general law they possessed prior to the passage of said act. i ¿¡fees' exclude all creditors from participation in certain specified assets, until the claims of depositors and transmitters are satisfied.

The granting of such priority or preference is by statute mad condition for the lawful transaction of the business of private ba 1 ing; but such preference cannot of itself deprive a man of the ri.;,'1 of tracing and claiming his own money when found in the possession of an unfaithful fiduciary — which is all that has occurred in the present instance.

[2] 2. Assuming that this petitioner as a transmitter is entitled to the statutory preference, the granting of'the application below remov - ed him from competition with other creditors similarly situated in respect of the assets described in the statute.

In so far as the trustee represents such preferred creditors, he is benefited by the order complained of; in so far as he represents general- creditors, neither they nor he, as the'ir representative, have any right to keep funds which are identified as the very money of petitioner below.

Order affirmed, with costs.