63 Misc. 313 | N.Y. Sup. Ct. | 1909
This is an appeal by plaintiff from a judgment of the City Court which dismissed the complaint upon the opening. The facts are not disputed. The complaint alleges that one Eisen assigned a $500 hank deposit to plaintiff, who gave notice to the bank of such assignment. More than three and a half months later, defendant was appointed receiver in supplementary proceedings, by an order of the City Court of Eisen. The bank was at once notified of the appointment, and, at the end of some three more months, paid $250 of Eisen’s deposit to defendant who took it in his capacity as receiver without knowledge of the prior assignment. Plaintiff notified defendant of his interest and demanded payment of the amount, which was refused. He then secured an order from the court authorizing him to bring an action against the receiver for the recovery of the amount. Ho tort is alleged, the action being against the receiver in his official capacity on the theory of an implied
For these reasons the judgment of the lower court must be reversed and a new trial ordered, with costs to appellant to abide the event.
Gildersleeve and Dayton, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.