Majority
p. 797The People v. Madison Square Bank. In the Matter of George T. Fitzgerald, App’lt. (Supreme Court, General Term, First Department, Filed January 12, 1894.)
Headnote
Mortgage—Payment.The receiver of a bank which, after having assigned a mortgage, accepted payment from the mortgagor, who had not had notice of the assignment, will be required to pay over the amount to the assignee on the application of the mortgagor.
On June 10, 1891, George T. Fitzgerald, the petititioner, executed a mortgage to one Henry Morgenthau for $2,580, due June 15, 1894. Morgenthau assigned the same to the Title Guarantee h Trust Company, October 7,1891, The latter assigned the same
p. 798
to the Madison Square Bank March 18, 1892, of which the petitioner had due notice. On July 25, 1892, the latter on suggestion from the Madison Square Bank, paid the bank $1,580, to be applied on the principal, and $8.77 on the interest, then due on said mortgage. "The bank became insolvent, and Miles M. O’Brien and James Gf. Cannon were appointed receivers thereof in August. 1893. On October 30, thereafter, said Fitzgerald was notified by the State Trust Company, 36 Wall street, that the latter held and owned said mortgage by assignment from the Madison Square Bank, the latter having assigned'the same April 6, 1893, and this was the first potice he had. Said State Trust Company further claimed the entire amount of $2,580 as due, with interest, and refused, on demand of Fitzgerald, to credit the amount of $1,580 as paid in reduction of said principal, and the interest paid at the same time, of $8.77. Thereupon, this petitioner notified the receivers of the Madison Square Bank of this claim of the State Trust Company, and was informed by them thst the amount in question, of $1,588.77 had been duly passed to the credit of said Madison Square Bank. Yet the latter,and its receivers and attorneys, refuse, and ever have refused, to pay this money over to the State Trust Company, or to any one, to be duly credited on said mortgage.
L. W. Redington, for app'lt.; Moses Weinman, for resp’t.
The money paid by the petitioner in this proceeding having been wrongfully received by the Madison Square Bank after it had parted with the bond and mortgage upon which it was paid, the petitioner is entitled to be put in precisely the same position which he would have occupied had the bank held the mortgage at the time of the payment, which the bank or its receivers cannot be heard to object to. This can only be done by directing the receivers to pay the money of the petitioner, which they have in their possession, to the State Trust Company, to be applied upon the bond and mortgage in question. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.