Beckham v. Hague — 44 A.D. 146

Majority

p. 146

R. E. Beckham, Receiver of The El Paso National Bank of Texas, Respondent, v. James D. Hague, Appellant.

Headnote

Secw’ity for costs — by the-non-resident receiver of a National bank of another State — Ms right to sue.

Where the non-resident receiver of a Texas National bank (having no assets in the State of New York), appointed by the Comptroller of the Currency under a. Federal statute, brings an action in the Supreme Court of the State of New York in a representative capacity, not defined by section 3271 of the Code of • Civil Procedure, the defendant has an absolute right under section 3268 of ' ■ that Code to require him to give security for costs.

Semble, that such a receiver has implied authority to sue for debts due the bank in his own naine, or, where the common-law forms of pleading still prevail, in the name of the bank to his own use.

Appeal by the defendant, James I). Hague, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 22d day of August, 1899, as resettled by an order entered in said clerk’s office on the 25th day of August, 1899, denying his motion that the plaintiff be required to give security for costs.

George Coggill, for the appellant.

Anderson Price, for the respondent.

The application here differs from that made in Pursley v. Rodgers (ante, p. 139) in that it is in terms made under section 3268 of the Code of Civil Procedure, and, consequently, security for costs is claimed as matter of right because of the plaintiff’s-non-residence. The legal status of the plaintiff here also differs from that’ of the plaintiff in the case referred to. The present plaintiff is a non-resident of this State, and the Rational bank of which he is receiver is a foreign corporation within the definition of section 3343, subdivision 18,- of the Code. It is created by or under the laws' of the United States, but it is not located within the State. Then, too,, the action is not brought by the receiver in any of the representative capacities defined in the provisions of the Code with

p. 147

respect to security for costs. It is, therefore, within the contemplation of these provisions brought by him individually. He was appointed receiver of this bank by the Comptroller of the Currency under power conferred by^the Federal statute. This statute did not bring him within section 3271 of the Code. It did not make him an official assignee, nor the trustee of an express trust nor a person expressly authorized by statute to sue. He was authorized to sue — not expressly, however, but as a fair implication from the authority to collect debts due to the bank. And the Supreme Court of the United States has held that he was so impliedly authorized to sue either in his own name or — where the common-law forms of pleading still prevail — in the name of the bank to his own use. (Kennedy v. Gibson, 8 Wall. [U. S.] 498; Bank v. Kennedy, 17 id. 19; Thomp. Corp. § 7280.) In this State it has been held that where permission to bring suits in- the name of the president of banking associations was given by statute, such an association may sue in its corporate name as well as in the name of its president. (Leonardsville Bank v. Willard, 25 N. Y. 574 .) As the plaintiff — suing in no representative capacity defined in section 3271 of the Code — is a non-resident, and the bank for which he sues is a foreign corporation, and as none of the assets of the bank are within the jurisdiction or control of the courts of this State, the case is clearly brought within both the spirit and the letter of section 3268 of'the Code.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., concurred in result.

Order' reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Cases cited

Leonardsville Bank v. Willard 25 N. Y. 574 N.Y. p. 147