Utica Insurance v. Hunt

1 Wend. 56

• Court: New York Supreme Court
• Decided: May 15, 1828
• Status: Published

Opinion

By the Court,

Sutherland, J.

The declaration contains but one count, and that is upon a promissory note made by one Scudder to the defendants, and by them endorsed to the plaintiffs. The plea alleges, that the plaintiffs at the time of making said note, were illegally engaged in issuing of notes, receiving deposits, making discounts, and "of transacting all other business which incorporated hanks may and do transact; that being so engaged, the note in question was made with the intent, and for the purpose of being discounted by the plainliffs3 who, knowing said facts, discounted the same in the usual course of their banking operations; by reason whereof, said note is void. The plaintiffs reply, setting up a right to cany on banking operations under their charter, and admitting that they did receive and discount the note in question in the usual course of their operations. To this replication the defendants demur; so that the only question presented by the pleadings is, whether the plaintiffs have banking powers under their charter, or not.

This question is settled by the case of The People v. The Utica Insurance Company, (15 Johns. R. 358,) and The Utica Insurance Company v. Scott, (19 Johns. R. 1.) This latter case, is in all respects like the one now before the court. There, as here, the action was upon the security, which was held to be void, and judgment was rendered for the defendant. Whether the money lent, and for which the security was given, can be recovered back in another form of action, is a question which does not arise in this case.

Judgment for the defendant on the demurrer,