People v. Madison Square Bank — 82 N.Y. Sup. Ct. 114

Majority

p. 114

The People of the State of New York, Plaintiff, v. The Madison Square Bank, Defendant. In the Matter of the Petition of George T. Fitzgerald, Appellant.

Headnote

Money wrongfully received by a bank in part payment of a mortgage — when it must be turned over by the receiver of the bank to the holder of the mortgage.

Wliere money was wrongfully received by a bank in part payment of a bond and mortgage after the bank had parted with such bond and mortgage, the person paying the same is entitled to be put in the same position -which he would have occupied had the bank held the mortgage at the time of the payment, and the receivers of the bank, appointed after such payment, must turn over such money so received by the bank to the holder of the bond and mortgage to be applied by him thereon.

Appeal by tlie petitioner, George T. Fitzgerald, from an order of the Supreme Court, made at tlie New York Special Term and entered in the office of the clerk of the city and county of New York on the 27th day of November, 1893, denying his motion for an order directing the receivers of the Madison Square Bank to pay out of the funds in their hands, as receivers, and before any distribution of the assets of said bank is made, to the State Trust Company, the sum of $1,588.77, with interest from July 25, 1893.

The petition of George T. Fitzgerald showed that on July 25, 1893, he paid to the Madison Square Bank the sum of $1,580 on account of the principal of the bond and mortgage referred to in the opinion, and $8.77 on account of the interest thereon, and that receivers were appointed of the Madison Square Bank on August 3 and 14, 1893..

L. W. Reddington, for tlie appellant.

Moses Weiman, for the respondent.

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

p. 115

to. Tliis 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 ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

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