Majority
Headnote
1. Building and Loan Associations <3^=41—Matubed Stock—Refusal to Pay—Abticles of Association—Effect.On the 7th day of December, 1894, the plaintiff made application for four shares of the 30-day installment stock of the Co-operative Building Bank. This stock was issued and delivered to the plaintiff. He paid all his dues, and on October 29, 1908, he was notified by the defendant that his stock had reached its maturity value and that he need malee no further payment of dues. Subsequently the plaintiff wrote the defendant, stating that he desired to withdraw the maturity value of his stock. The defendant, however, failed to pay to the plaintiff this maturity value, and this suit has been brought to recover the same.
Under the articles of association of the defendant, the stock is deem- . ed to- have matured when the amount in the loan fund standing at the credit of the stock equals $100 per share. But the articles of association also provide:
“In no case shall the amount paid out in any week upon withdrawals exceed one-third of the cash receipts of the bank for such week, except by vote of the board of directors. Should the applications for withdrawals exceed the amounts herein provided, such applications shall be numbered and paid in order as received.”
[1] The proof is uncontradicted that applications by other shareholders for withdrawals, filed prior to the plaintiff’s application, far exceeded one-third of the cash receipts of the defendant between the date of his notice of withdrawal and the date of the commencement of this action. This being so, the matured value of the plaintiff’s shares could not be paid until reached in their regular order. The articles of association and by-laws of the defendant constitute the contract between the parties herein. Engelhardt v. Fifth Ward Loan Ass’n, 148 N. Y. 281 , 42 N. E. 710 , 35 L. R. A. 289 . It is entirely clear, therefore, under the contract between the parties, that plaintiff’s shares were not due and payable on the date of the commencement of his suit.
[2] It is apparent to'the plaintiff, it would seem from his argument and from the opinion in the court below, that he has not established a cause of action under the contract; but he seeks to invoke a certain clause in section 229 of the Banking Law, as amended by chapter 126 of the Laws of 1910. It reads as follows:
“Whenever such applications or demands (applications for withdrawals), whether heretofore or hereafter made, have been on file and remain unpaid wholly or in part for two years, the superintendent of the banks may, in his discretion, forthwith take possession of the property and business of such association, and retain such possession until such association shall resume business or its affairs be finally liquidated as provided in section 19 of this chapter.”
We do not conceive that this provision bears any relation whatever to the issues in hand. It simply added another condition to those already enumerated in section 19 of the Banking Law under which the superintendent of banks, in his discretion, was authorized to interfere and take possession of the business of certain delinquent corporations. An examination and comparison of the various sections of the Banking Law as it now stands, leads nowhere to the conclusion that this provision was an implied “command ü> pay within two years,” as was held by the trial justice. Section 19 of the Banking Law specifically
Without the assistance of section 229 of the Banking Law, there can be no' doubt that the plaintiff has wholly failed to establish a cause of action, and inasmuch as this section avails him nothing, it follows that he has failed altogether, and that the judgment should be reversed, and a judgment rendered for the defendant, dismissing the complaint, with costs. All concur.