10 N.Y.S. 165 | N.Y. Sup. Ct. | 1890
The defendant, while a banking association under the laws of this state, and in 1865, having become a national banking association under the provisions of the act passed in that year, (chapter 97,) and desiring to retire its circulating notes issued while a state bank, proceeded to comply with the provisions of the act of 1859 (chapter 236) relating thereto. In its con
It is true that by section 1 of the act of 1865 it is declared that its provisions shall be taken and deemed as an amendment of the laws of this state in reference to the banking business, and therefore they were ingrafted on those laws; and for this reason, if no other exists, it must be conceded that whether it was the intention of. the legislature to provide that the two proceedings should go on pari passu, that is, the national organization, and the retirement of its notes by the bank while a state corporation, is a difficult and troublesome question. The act of 1865, it must be observed, will be read in vain to discover any language, except by remote implication, which tends to express such a design. In the act of 1859, however, we find not only language indicating the expressed purpose of the statute to be to facilitate existing state banks to retire their circulation, but language from which that purpose, and that purpose only, is declared and quite manifest. It provides, among other things, that there shall be a publication in the state paper by the superintendent of banking that the bank-notes will be redeemed by him, and must be presented within six years from the date of the notice; and that upon the expiration of such six years (ail proceedings being regular) it shall be lawful for the superintendent to surrender to the banking association, and ij; shall be entitled to receive from him, all the money remaining in his hands after such redemption, except so much as may be necessary to pay the reasonable expenses chargeable against the accounts, including the publication of the required notices. The money so to be refunded is whatever remains of the amount required to be deposited in order to fully meet the outstanding circulation at the time the proceeding is initiated, whatever that may be. By section 5 it is further provided.that a banking association, after the payment of all the circulating notes issued by it which shall have been presented within the time required by the notice to be published, as already stated, and of all other lawful claims and demands against the bank, it shall divide the remaining property and effects of the bank among the stockholders thereof, or their personal representatives, according to the respective shares and interests therein. It will at once be perceived that if the bank continues in another form, all its assets being transferred to the new formation by operation of the statute, the division contemplated by the section cannot be made; and in that respect, at least, the object and design of the act is frustrated. A provision of this kind would, by implication, if there were no express language leading to such a result, determine the character of the statute and its purpose. It seems to be a necessary corollary, if the distribution is to take place of any surplus, that the absolute death of the corporation is not only contemplated, but indispensable, in order to carry out the provisions of the statute. For these reasons, in addition to those assigned by the learned justice in the court below, (4 N. Y. Supp. 115,) it is thought that the judgment is correct, and should be affirmed, with costs.
Van Brent, P. J., concurs. Bartlett, J„ concurs in result.