184 A.D. 37 | N.Y. App. Div. | 1918
The action was commenced May 23, 1910, by F. Augustus Heinze. Issue was joined by the service of an amended answer to an amended complaint on June 28, 1914. At that time the defendant was in liquidation, having been taken over by the State Superintendent of Banks, and the answer was verified by a Special Deputy Superintendent of Banks. After issue had been so joined and on the 4th of November, 1914, Mr. Heinze died. His administrator was duly substituted, but the issues came on for trial as thus joined before his death, and for brevity he is referred to as the plaintiff. The complaint shows that on the 12th day of June, 1908, the Northern Bank of New York and the Hamilton Bank of New York city, both domestic moneyed corporations, were merged into the Riverside Bank of New York city, an existing domestic moneyed corporation, and it thereupon took as its name the Northern Bank of New York, the defendant herein.
The transactions on which the action is based were had with said Riverside Bank. The plaintiff alleged that on the 16th of October, 1907, said bank was in financial difficulties and requested him to loan to it certain specified securities and $50,000 in cash, all of which he owned, to enable
The judgment in favor of the plaintiff was not granted on the theory of the conversion of the securities as alleged in the complaint, but on the theory, in part, of the answer that they were received by the defendant as collateral security for the loans of said firm of Otto Heinze & Co. as alleged in said defense and that they were converted by the sale admitted in said defense, which it is claimed was had without the statutory notice of ten days required by section 201 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) and advertising as required by section 202 thereof. (See, also, Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], §§ 81, 82, as amd. by Laws of 1899, chap. 369.) The inference that they were sold withput such statutory notice and advertisement is drawn from the fact that sufficient time
We are of opinion that the learned referee erred in holding that the sale and application of the proceeds thereof on the indebtedness of the firm of Otto Heinze & Co. was not with the consent and approval of the plaintiff and upon notice to him. It may well be that a witness could not have been permitted to testify in the language of the defense if objection
It follows that the judgment should be reversed and a new trial granted before a referee to be named in the order, if the stipulation for the reference, which is not in the record, requires the trial before a referee, and if not, then a new trial is ordered generally, with costs to appellant to abide the event.
Dowling, Smith, Page and Merrell, JJ., concurred.
Judgment reversed and new trial ordered before another referee to be named in the order, if the stipulation requires a trial before a referee; otherwise, a new trial ordered generally,. with costs to appellant to abide event. Order to be settled on notice.