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McGrath v. Carnegie Trust Co.

152 N.Y.S. 537 Court N.Y. App. Div. Decision date 1915-03-26 Docket No. 6637 English

Delivered by HOTCHKISS, J.

Contents

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p. 537
McGRATH v. CARNEGIE TRUST CO. et al.
(No. 6637.)
(Supreme Court, Appellate Division, First Department.
March 26, 1915.)

Headnote

Appeal from Special Term, New York County.
Action by John M. McGrath against the Carnegie Trust Company and George C. Van Tuyl, Jr., as Superintendent, etc. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.
Joseph A. Kellogg, of Glens Falls, for appellants.
Tompkins McIlvaine, of New York City, for respondent.

Some time after the Carnegie Trust Company failed, the Nineteenth Ward Bank became financially involved and borrowed a large amount of money from one Phipps, and as collateral security gave to him the notes it had received from Moore and the Manufacturers’ & Merchants’ Security Company, aggregating $140,000, and which notes are more particularly referred to in the opinion in the case of Madison Trust Co. v. Same Appellants, 152 N. Y. Supp. 517 . Subsequently Phipps transferred the notes to the plaintiff. Although both of the foregoing transfers are attacked on this appeal, and, as well, the right.of both Phipps and the plaintiff to succeed to the equities of the bank arising out of the trust letter signed by Smith, vice president of the Carnegie Company, I am satisfied that this attack is justified neither in fact nor in law, and that the plaintiff has succeeded to all the rights of the bank with respect to the trust, which, for the reasons given in my opinion in the Case of the Madison Trust Co., I hold to have been established by the letter. All other questions involved herein have been disposed of in the Madison Trust Co. Case.

The judgment should accordingly be modified, so as to allow plaintiff to recover the amount of his debt as a simple creditor, and, as so modified, affirmed, without costs.

LAUGHLIN and DOWLING, JJ., concur.

For the reasons stated at length in Madison Trust Co. v. Carnegie Trust Co. et al., 152 N. Y. Supp. 517 , decided herewith, I am of opinion that the judgment appealed from should be reversed, and the complaint dismissed, with costs to appellants in all courts.

INGRAHAM, P. J., concurs.