| NY | Oct 26, 1883
The petitioner and the City Bank of Rochester acted as collecting agents for each other in the cities where they were respectively located. The petition in this matter avers on information and belief that the petitioner had, *584 prior to the failure of the City Bank of Rochester, sent to that bank commercial paper for collection; that the paper had been collected, and that the bank had placed the amount so collected on its books as a fund belonging to the petitioner, separate and apart from other funds of the bank, and that the fund so set apart remained in the bank at the time of the appointment of the receiver. These averments are controverted by the affidavits read in opposition to the motion, which show that the course of dealing and arrangement were that each of the two banks kept a running account with the other, crediting it with the avails of collections made for it, and charging it with papers sent to it for collection; that a balance was struck once a week, and the bank found indebted to the other remitted to it by draft on New York the balance due, less commissions, and that the avails of these collections were never kept separate from the other funds of the bank or distinguished therefrom in any way. Upon this state of facts the creditor bank failed to establish any lien, or impress any trust on any specific money of the debtor bank, which would enable it to follow any of its property or funds which went into the hands of the receiver and obtain payment in preference to other creditors. Each sum collected, as it came in, became the property of the collecting bank, who simply became liable to account for it to the other on the next settling day. It was under no obligation to pay over each specific sum received. Whether there would be any thing to pay over, depended upon the condition in which the account should be when the settling day arrived. This was the course of dealing agreed upon and followed between the parties for a long period, and it established between them the relation of debtor and creditor in respect to these collections.
The order should be affirmed.
All concur.
Order affirmed. *585