Opinion
May 29, 1931.
Appeal from Supreme Court of New York County.
James F. Warden of counsel [ Warren C. Fielding with him on the brief; Carl J. Austrian, attorney], for the appellant.
L. Hyler Connell, for the respondent.
Present FINCH, P.J., McAVOY, MARTIN, O'MALLEY and TOWNLEY, JJ.
Petitioner, the committee of an incompetent, deposited funds in The Bank of United States, an authorized depositary for trust funds. This bank is now being liquidated by the Superintendent of Banks under the provisions of the Banking Law. The petitioner has been granted a peremptory mandamus order directing the Superintendent to turn over the balance on deposit in his account. No authority exists for the granting of this relief.
The Banking Law (§ 188, subd. 8) gives a preference over general depositors to guardians, committees, trustees and others who make deposits under court orders in banks authorized to act as depositaries for such funds. These deposits are not to be considered as bailments of specific money. There is nothing in the Banking Law to indicate that the relation between such depositors and the bank is to be regarded as other than the usual debtor and creditor relationship. The Banking Law also provides (§§ 72 to 78, inclusive) a comprehensive scheme governing the orderly liquidation of a bank. Summary orders to pay over to committees and other fiduciaries are not prescribed and should not be granted.
Section 72, as amd. by Laws of 1930, chap. 664; since amd. by Laws of 1931, chap. 310. Sections 73-78, as amd. by Laws of 1930, chap. 678; §§ 73, 74 since amd. by Laws of 1931, chap. 191; § 76 since amd. by Laws of 1931, chap. 310. — [REP.
The petitioner's claim should be enforced in the liquidation proceeding in the manner provided by the Banking Law. In such proceeding he will be entitled to a preference and may obtain payment in common with other creditors of the same class.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied.
Order reversed, with ten dollars costs and disbursements, and motion denied.