In re People — 235 A.D. 250

Majority

p. 250

In the Matter of the Application of The People of the State of New York, by Thomas F. Behan, Deputy and Acting Superintendent of Insurance of the State of New York, for an Order to Take Possession of the Property and Liquidate the Business and Affairs of the Equitable Casualty and Surety Company, Appellant. Pennsylvania Exchange Bank, Respondent.

First Department,

April 15, 1932.

p. 251

Alfred C. Bennett of counsel [John J. O’Connor, attorney], for the appellant.

Max Dorff of counsel [Loin's Greenblatt with him on the brief; Dorff & Levy, attorneys], for the respondent.

We are of opinion that the Superintendent of Insurance, acting as liquidator, is not to be deemed a receiver within the purview of section 151 of the Debtor and Creditor Law (as added by Laws of 1927, chap. 697). Respondent, therefore, had no right of setoff of its unmatured claim at the time when the demand was made on it for payment of the amount of the deposit and the check drawn upon the deposit account in such sum was presented. However, we are confronted by the controlling circumstance that there existed merely the relationship of debtor and creditor, so that a summary order directing the payment of the debt may not issue. (Matter of Delaney, 256 N. Y. 315 .)

It follows, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Finch, P. J., McAvoy, Martin and Townley, JJ., concur.

Order affirmed, with ten dollars costs and disbursements to the respondent.

Cases cited

In re Delaney 256 N. Y. 315 N.Y. 1931-05-12 p. 251