| N.Y. App. Div. | Feb 15, 1899
Lead Opinion
It must be regarded as settled that as to moneys deposited in a bank, before the same can be recovered in a suit, it is a condition
The question, therefore, turns upon whether the letter of the receiver was a proper demand, and, if not, whether the anstver thereto can be construed as of a nature to justify the failure to make further demand. There can be no doubt that the receiver wanted and requested of the bank a return of the deposit; and while the-requirement that it should be sent to the receiver’s office was one that the bank was not obliged to comply with, it was an objection which should have been taken at the time. The receiver made his request in the form outlined in his letter, and if it was the intent or pui’pose of the bank, before honoring the demand or paying the money, to insist that the receiver should draw his check in the usual way against the account, and, either personally or through some other medium, present it with evidence of his authority, it seems but reasonable that it should then have taken that objection and so notified the receiver. It did not, however, take the objection that the receiver had no right to ask the bank to send the money to him, but,, instead of meeting the request as made, the bank turned the receiver’s letter over to their attorneys. AVe are thus brought to a consideration whether or not such action on the part of the bank,,, coupled with the subsequent letter of the attorneys, was a refusal.
The reply of the attorneys fully justifies the inference that, under claim of right, the bank intended to retain the moneys and apply them to the payment of the indebtedness due to it from the firm. If such was not the intention, the language was so evasive and so well calculated to produce that impression that fault cannot be found with the receiver if he was thus misled. While, therefore, it may not be that the receiver’s letter, taken by itself, was a sufficient demand, yet, when coupled with the bank’s action and the language of the attorneys’ letter, in which the bank’s position was defined, we think it was error for the trial justice to hold that any further or more formal demand was necessary before suit. The right suggested in the letter of the attorneys and alleged in the answer, to appropriate these moneys to the bank’s indebtedness, might or might not have been sustained upon the trial; but that question is not presented upon this appeal, the nonsuit being placed on the ground of the failure of the plaintiff to show a demand in any form, or a sufficient refusal on the part of the bank. We think that the ruling made was incorrect, and that the judgment
Yan Brunt, P. J., Barrett and Patterson, JJ., concurred; Rumsey, J., dissented.
Dissenting Opinion
(dissenting):
For seven years before the 24th of February, 1897, the firm of William Campbell & Co. was engaged in business and was a depositor in the Central National Bank. On the 13th of December,
“New York, May 12th, 1897.
“ Central National Bank of New York :
“ Gentlemen.— I have been appointed receiver of the late firm of William Campbell & Company, which has on deposit with you the sum of $1,138.08. Will you please send me that amount, and let me know what papers you require for vouchers, showing my appointment, and I will prepare and send them to you.
“ Yours truly,
“ (Signed) JOHN DELAHUNTY,
“ Reo'r.”
No other demand was ever made for the amount of the deposit than the writing and sending of this letter by mail to the bank. The only notice taken of the letter was a reply sent the next day by the counsel of the bank, of which the following is a copy :
“ New York, May V&th, 1897.
“ John Delahunty, Esq.:
“Dear Sir.—The Central National Bank of New York has referred to us your letter of yesterday, requesting us to attend to it. Yon are pwobably not aware that the bank is, itself, a creditor of Campbell & Co. to an amount far exceeding these moneys mentioned in your letter to it.
“ Yours truly,
“ DUER, STRONG & JARVIS.”
After the receipt of that letter by the receiver, there seem to have been no further communications between the parties, but this action was brought against the bank for the recovery of the amount of the deposit. On the trial, upon proof of the foregoing facts, the court held that no sufficient demand had been made upon the bank, and that it had not waived a demand or refused to pay ; and, therefore, that the plaintiff had not proved a cause of action, and it directed a nonsuit. From the judgment entered upon that direction this appeal is taken.
If the bank had paid no attention to this letter, no one would claim for an instant that it operated as a demand to put it in default and to permit an action against it for the recovery of this money. But it is said by the plaintiff that the answer of the bank showed that a demand would have been futile, and, therefore, that there was no necessity of making one. In the case of Southwick v. First National Bank of Memphis (84 N.Y. 420" court="NY" date_filed="1881-03-08" href="https://app.midpage.ai/document/southwick-v-first-national-bank-of-memphis-3589408?utm_source=webapp" opinion_id="3589408">84 N. Y. 420) it is said that “ when a demand is necessary it is not excused by showing that the defendant would not probably have complied if one had been made.” But without insisting upon the rule of law there laid down, and conceding that if it had been made to appear that the bank would not have complied with a proper demand under any circumstances, the plaintiff would have been excused fi-orn making one, it remains to be considered whether the letter which was in fact written was to be construed as a refusal to pay the money such as to relieve the plaintiff from the necessity of making the demand.
The relative situations of the parties as they appear from the evidence are that the firm of Campbell & Go. were depositors with the bank; that the deposit had been standing unclaimed from December, 1895, until May, 1897, and that the receiver was appointed very shortly before his letter was written. Whether he had any information as to the business relations between the bank and the firm does not appear. It is fairly to be assumed from the letter, and there is no other proof in the case upon the subject, that the bank was a creditor of Campbell & Go. to a considerable amount. If Campbell & Go. were solvent, and there is no proof that they were not, the bank owed them nothing, because it had the right to set off the amount of the deposit against the debt. (Commercial Bank of Albany v. Hughes, 17 Wend. 94" court="N.Y. Sup. Ct." date_filed="1837-05-15" href="https://app.midpage.ai/document/commercial-bank-v-hughes-5514737?utm_source=webapp" opinion_id="5514737">17 Wend. 94; Sweeny v. Easter, 1 Wall. 166" court="SCOTUS" date_filed="1864-04-18" href="https://app.midpage.ai/document/sweeny-v-easter-87566?utm_source=webapp" opinion_id="87566">1 Wall. 166.) If for any reason that right did not exist, it is quite clear that the defendant was entitled to be informed as to the facts which took away the right before it could be called upon to pay over the full amount of the deposit to the receiver. No inference can be drawn from the letter of the defendant that, if it had been made to appear that the firm of Campbell & Co. was not solvent, so that the defend
But it is claimed by the plaintiff that the defendant is not in a. situation to insist that the demand was not sufficient because it ■alleged in its answer that the amount of the deposit had been applied upon the debt due from Campell & Co. to the bank. There ■ is no proof of that fact. If the defendant admits that fact — and unless it admits it no advantage can be taken of it here — then the bank, having a counterclaim to a very much larger amount than the-amount of the deposit, had the right to apply the deposit upon it and was not indebted to Campbell & Co. when the receiver was-appointed, and is not indebted to the receiver now. But I apprehend that the fact that the defendant sets up as an affirmative-defense something which, if proven, would do away with the necessity of proving a certain fact to establish a cause of action, does not permit the plaintiff to recover without proving his cause of action, at. least, until proof has been given to establish the defense. The rule is thoroughly settled that the defendant may put his defense upon distinct and even upon inconsistent grounds (Goodwin v. Wertheimer, 99 N.Y. 149" court="NY" date_filed="1885-05-05" href="https://app.midpage.ai/document/goodwin-v--wertheimer-3576229?utm_source=webapp" opinion_id="3576229">99 N. Y. 149), and if the defendant pleads a general denial,, the plaintiff is clearly bound to prove his cause of action, although the defendant may also set up a confession and avoidance by way of affirmative defense. When the plaintiff closes his case, the question for the court is whether, taking the facts proved and the admissions of the pleadings, the plaintiff has shown himself entitled to
The judgment should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide event.
Concurrence Opinion
(concurring):
I agree to the reversal of this judgment. . No particular form of demand was necessary. As Judge Bronson said in Downes v. Phœnix Bank of Charlestown (6 Hill, 299), “ The understanding between the parties is, that the money shall remain with the banker until the customer, by his check, or in some other way, calls for its repayment.” Here the receiver called for payment. It was a demand, though not such a demand as the bank was bound to honor. The receiver said, “ Will you please send me that amount,” specifying it. That was certainly a request for the money. The bank need not have replied, or it might have replied, “We will not send you that amount, as you are bound to call for it.” But it made neither of these replies. It spoke through its lawyers. The reply of these gentlemen was, therefore, the reply of the bank. It was quite as though the bank had written directly to the receiver and had said what they said. The bank then, being asked to please remit the amount due, replies, “ You are probably not aware that the bank is itself a creditor of Campbell & Co. to an amount far exceeding these moneys mentioned in your letter to it.” This is its sole reply to the request for the money. What is that but a refusal to honor the plaintiff’s request, not because the bank objected to its form or substance, but because it deemed. itself entitled to keep the money ? The receiver was justified in thus regarding the letter in question, and in treating it as the bank’s counter statement to his request; a counter statement implying non-recognition of his rights, an assertion of the bank’s rights, and a refusal to pay him.
Yan Brunt, P. J., concurred.