Opinion
December, 1935.
Appeal from Supreme Court, Westchester County.
Order denying motion of the appealing defendants to dismiss the complaint for insufficiency reversed on the law, with ten dollars costs and disbursements, and motion granted, without prejudice to the commencement of a new action, on the ground that the plaintiff did not file a claim with the liquidator of the bank prior to the commencement of the action. (See Matter of Westchester Trust Co. [ Yonkers Nat. Bank Trust Co., etc.], ante, p. 546.) Lazansky, P.J., concurs, being of the opinion that sections 72 Banking and 76 Banking of the Banking Law apply to the claim set forth in the complaint; but if the plaintiff did not know of the fraud until after the expiration of the four months' period mentioned in those sections, then it was not necessary for the plaintiff to file a claim. Commencement of the action, under the circumstances, was sufficient. Hagarty, J., concurs, being of the opinion that sections 72 Banking and 76 Banking of the Banking Law are applicable. Davis, J., concurs, being of the opinion that plaintiff may still have an opportunity to file a claim if she presents facts showing lack of actual notice of presentation of claims or lack of discovery of the fraud, or that the date of the discovery of the fraud did not give her opportunity to file a claim within the period fixed by statute, in which event an action may be maintained after the claim has been filed and rejected. The statute requires "all claims" to be filed, but circumstances may be shown so that the short period of limitation will be held to be unreasonable and inequitable if the plaintiff acts promptly, files a claim and shows no laches after being advised as to her rights. Young and Tompkins, JJ., dissent and vote to affirm on the opinion of Mr. Justice Witschief at Special Term.
The following is the opinion of the Special Term:
This action is brought to procure a judgment rescinding a purchase by the plaintiff from the Westchester Trust Company of a certain mortgage participation certificate on the ground of fraud. The defendants Westchester Trust Company and the Superintendent of Banks move to dismiss the complaint and in the brief submitted in their behalf it is claimed that the complaint is deficient in that it fails to allege that the plaintiff's claim was duly filed as required by section 76 Banking of the Banking Law. The provisions of the Banking Law must be read together, and so read do not apply to the claim asserted in this action. By section 72 the Superintendent of Banks is required to mail notices to all persons whose names appear as creditors upon the books of the corporation and by other sections he is required to list all claims duly presented and may reject any claim or accept it, etc. These sections of the Banking Law do not in terms refer to claims arising out of fraud or other tortious act, and justice requires that the language of the section should not be strained for the purpose of excluding the plaintiff's claim. ( Harrigan v. City of Brooklyn, 119 N.Y. 156.) It will, therefore, be held that the limitation in section 76 Banking of the Banking Law does not apply to the plaintiff's claim. The only other point raised in the brief for the defendants is that the complaint is defective as against the defendant Superintendent of Banks, but as he is in charge of the Westchester Trust Company, in liquidation, he is a proper party defendant in this action for rescission. Motion is, therefore, denied, with ten dollars costs.