Schlesinger v. Goldberg

47 Misc. 149, 93 N.Y.S. 592

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1905
• Status: Published

Opinion

Leventritt, J.

This appeal presents simply the familiar question whether a debtor of an insolvent bank can offset a claim acquired by assignment after the suspension of the bank.

The action was brought by the receiver of the Federal Bank on a discounted note in the sum of $400 made by certain of the defendants and indorsed by the others. The-note matured after the appointment of the receiver. The sum of $29.38 had been paid on the note, and the plaintiff conceded a further credit of $116.81, being the amount on deposit with the bank by the makers at the time of the suspension. Suit was, therefore, brought for the sum. of $253.81. The answer of the indorsers claims an offset in the sum of $328.80, arising by assignment to them prior to the commencement of the action, but after the suspension of the bank of the balances to the credit of two of its depositors. The offset was disallowed and judgment given in favor of the plaintiff for the amount claimed.

The judgment was right. A contrary conclusion would have resulted in an unlawful preference. The right to a set-off must exist at the time of the suspension or insolvency. The cases are clear on this point. Van Dyck v. McQuade, 85 N. Y. 616; Fera v. Wickham, 135 id. 223. While the receiver, therefore, properly allowed the deposit to the credit of the makers of the note as a cross-demand existing at the time of the insolvency, the subsequent assignment of the other balances was futile as against the equities that had! attached in favor of the general creditors of the bank..

The judgment should be affirmed, with costs.

Scott and Greenbaum, JJ., concur.

Judgment affirmed, with costs.