55 N.Y.S. 941 | N.Y. App. Div. | 1899
We assume that the plaintiff proved title to the-moneys deposited by Stein & Co. on three several occasions to their personal credit with the respondent, the Hanover National Bank, amounting to the sum of $6,242.78. As, until the time of the failure-of Stein & Co., the bank account of that firm never fell below that sum, we are of opinion that the plaintiff’s moneys must be considered as always on deposit in the bank. It is conceded that the respondent had no knowledge or notice of the claim of the plaintiff to these funds. Stein & Co., at the time of opening their account with: the respondent, executed an agreement by which the latter was authorized to hold, collect, and retain all moneys and property deposited with the bank as security for all liabilities due or not due, and-then or thereafter to be contracted which the bank might have against that firm. On November 8,1893, the respondent discounted for Stein & Co. a draft on Boston for $15,000, due December 1,1893. The draft was accepted by the drawees, but not paid at maturity. Being notified of the nonpayment by telegraph in the afternoon of December-
This disposes of the plaintiff’s whole claim, except in one respect. On December 1st, the same day upon which the bank seized the deposit balance, a receiver was appointed of the firm of Stein & Co. The plaintiff claims that, by the appointment of the receiver, the title to the deposit passed to the receiver, and that, after the time of the appointment, the bank could not seize the balance. This might be so if it appeared that the receiver was appointed before the bank closed the account. But, if this were the fact, we think it was incumbent upon the plaintiff to establish it affirmatively. This it has failed to do.
The judgment appealed from should be affirmed, with costs.