29 Barb. 243 | N.Y. Sup. Ct. | 1859
The judgment of the court of appeals, in the suit originally instituted in the late court of chancery, between Minott Mitchell, complainant, and Miles Cook and Bhoda his wife, defendants,
The judge at the special term found as a fact, that Elisha Crawford, the mortgagee, was an individual banker transacting business under the name and designation of the White Plains Bank. This is a material fact in the case; for if Richard Cadmus was the owner of the White Plains Bank, and the mortgage in question was part of its assets, the case would assume quite a different aspect. I do not see, however, that the court at special term could have reached any other conclusion. The documentary evidence derived from the bank department, the positive testimony of Elisha Crawford, the omission of Cadmus and his assignees to make any claim as owner or proprietor, without referring particularly to the other proof, could hardly leave a doubt of the fact found by the judge. It follows, as a result, that Crawford, and those who held the bank from him, had an undisputed right to assign and deliver the mortgage to Minott Mitchell. He had-
The validity of the alleged payment of $1000, made by Miles Cook on account of the mortgage, on the 1st January, 1846, and for which he holds the receipt of Richard Cadmus, the cashier, depends upon the authority of Cadmus to receive the money. The mortgage is dated on the 4th of September, 1844, and is made to secure the payment of $1400, with the interest, seven years from the date. At the time the money was paid, the mortgage had been assigned to, and was then in the hands of, the comptroller. Of this transfer Cook had full notice, as appears by his written admission of the date of September 10th, 1844, which is amongst the exhibits. It was no part of the cashier’s business to receive the principal moneys secured upon mortgages assigned to the comptroller to assure the redemption of the circulating notes of the bank. Whenever the notes were returned and the security reassigned, it became the property of Crawford, the mortgagee. And as cashier, even then I do not see how Cadmus could have legally accepted the money and discharged the mortgage, without special authority for that purpose. Crawford, as president of the bank, had power from the comptroller, given in pursuance of the 5th and 10th sections of the “ act to authorize the business of banking,” to receive the interest on the bonds and mortgages held for the bank. So Cadmus, by a like power from Crawford, the president, dated January the 21st, 1844, had authority to receive the interest. Cook could hardly have been deluded with the idea that he was making a valid payment upon the mortgage. He knew that neither
Brown, Davies and Clerke, Justices.]
I do not think it worth while to pursue the subject further. It was carefully and thoroughly examined, in all its aspects, by the judge at the special term, and his conclusions are in my judgment entirely right.
The judgment should be affirmed.
Reported in 3 Selden, 538.