198 A.D. 733 | N.Y. App. Div. | 1921
On the 11th day of April, 1921, pursuant to the Banking Law (§ 57 et seq.), the Superintendent of Banks took possession of the Bank of Cuba in New York, a domestic banking corporation, for the purposes of liquidation, and ever since has been and still is so in possession thereof. Appellant, on the 16th day of December, 1920, delivered to said bank three drafts on Antonio del Rio, of Havana, Cuba, to whom it had made three shipments of goods by the steamer General Consul Pallissen, with bills of lading for the goods and the other documents required with respect to shipments attached thereto, with instructions by letter inclosing the documents to forward the same to the correspondent of the bank in Havana “ for collection only ” and to deliver the bills of lading to the drawee on his acceptance of the draft, and with a request that it and its agents who were named be notified of the acceptance' and payments of the drafts. The drafts and accompanying papers were forwarded by the bank to the correspondent in Havana, viz., Banco Nacional de Cuba, and one of the drafts for $2,382.77, with which only we are concerned, was by the latter presented to the drawee and accepted and was paid to it on the 8th or 9th of April, 1921, and thereupon in accordance with the usual and customary practice in such cases, it credited the Bank of Cuba in New York with the proceeds thereof and forwarded to the Bank of Cuba in New York an advice thereof, which was received
The motion was not resisted by the Superintendent of Banks on the ground that it was not competent for the court to grant the relief in this summary manner and that the appellant should be left to bis remedy at law by an action in replevin or for conversion, but solely upon the ground that in the opinion of the Deputy Superintendent of Banks, in charge of the liquidation, the proceeds of the collection became an asset of the Bank of Cuba in New York and that the appellant’s only remedy was afforded by the provisions of the Banking Law with respect to the presentation, and allowance of its claim and an application for priority in the payment thereof over other creditors to be made in the Supreme Court by motion on the refusal of the Superintendent of Banks to accord priority and make the payment. (See Banking Law, §§ 72-78.) Appellant, in the first instance, proceeded upon that theory and filed its claim and also a claim for priority with the Superintendent of Banks, who did not act thereon, for the reason that the time within which claims of creditors might be filed had not expired and that his time for accepting or rejecting the claims had not expired. It is not necessary to discuss at length the point with respect to the jurisdiction of the court
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order reversed and motion granted, without costs.