Van Tuyl v. Schwab

Headnote

Van Tuyl v. Schwab, 174 App. Div. 665 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court m the first judicial department, entered November 3, 1916, which affirmed an order of Special

Term granting defendant’s motion for judgment on the pleadings and directing a dismissal of the complaint. This action was brought by the plaintiff, as superintendent of banks of the state of New York, against the stockholders of the Carnegie Trust Company to enforce their liability under section 196 of the Banking Law as it existed on January Y, 1911, pursuant to section 19 of that statute, which vested in the superintendent of banks the power to enforce the individual liability of the stockholders of a banking institution if necessary to pay its debts. The supplemental answer of the defendant Moore pleaded that on the 12th day of April, 1911, a petition in bankruptcy was filed against him, and such proceedings had thereon that on or about the 18th day of November, 1912, he was duly adjudicated a bankrupt; that thereafter the defendant duly filed his schedules in bankruptcy, duly listing the claim which is the subject-matter of this action; that the Carnegie Trust Company and the plaintiff had due notice of the proceeding and of the adjudication, and that thereafter, by order made on November 3, 1915, the defendant was discharged in bankruptcy. The reply denied that the claim which is the subject-matter of this action was duly listed in the bankruptcy proceeding; admitted that the Carnegie Trust Company and the special deputy superintendent of banks in charge thereof had notice of the proceedings in bankruptcy and of the adjudication, and denied that the plaintiff received notice of the application for discharge.