17 Blatchf. 318 | U.S. Circuit Court for the District of Southern New York | 1879
This is a suit in equity brought by the plaintiff, a citizen of New York, against the Mastin Bank, a Missouri corporation, and Kersey Coates, a citizen of Missouri, and the Metropolitan National Bank, a banking corporation established under an act of congress and doing business in the city of New York. The suit was brought in the supreme court of New York, and was removed into this court by the plaintiff.
The facts of the case are these: On the 1st of August, 1878, the plaintiff, at Kansas City, Missouri, paid to the Mastin Bank, which was located there, the sum of $2,000, in exchange for which said bank delivered to him a draft dated at Kansas City, August 1st, 1S78, and signed by its cashier, addressed to the Metropolitan National Bank, New York, and containing this direction: “Pay to the order of Max Rosenthal nineteen hundred and ninety-eight dollars.” At that time the Metropolitan National Bank had in its hands the sum of $1,998 belonging to the Mastin Bank. Said draft was presented at the Metropolitan National Bank on the 0th of August, 1878, by the plaintiff, and payment of it was demanded, but said bank refused to pay it, or to pay the $1,998, and the draft was protested and notice of such presentment, refusal and protest was given to the Mastin Bank. The Metropolitan National Bank then had, and ever since has had, and now has, the said sum of $1,998 in its possession. After such demand and refusal the plaintiff commenced a suit in the supreme court of New York for the city and county of New York, against the Mastin Bank, in which suit moneys belonging to the Mastin Bank in the hands of the Metropolitan National Bank were attached, and thereupon the latter bank gave to the sheriff a certificate, dated August 5th, 1878, which said: “We hold twenty-three hundred dollars from funds to the credit of the Mas-tin Bank, Kansas City, Mo., in matter of attachment of Max Rosenthal, plaintiff, for nineteen hundred and ninety-eight dollars.” On the 17th of October, 1878, the plaintiff recovered judgment in said suit for $2,133.15. On the next day the sheriff, in behalf of the plaintiff, demanded the amount of said judgment from the Metropolitan National Bank, but said bank refused to pay it, stating that the money was claimed by the defendant Coates, as assignee of the Mastin Bank by virtue of an assignment made August 3d, 1878, at Kansas City, by the Mastin Bank to said Coates. Coates claims said $1,998 by virtue of such assignment. The assignment is dated August 3d, 1878, and assigns to said Coates “all of the lands, tenements, goods, chattels, effects and credits of the said the Mastin Bank, of every -kind and nature, wheresoever situate, to have and to hold the same, unto him, the said Kersey Coates, and his heirs, successors and assigns, in trust for the use and benefit of all the creditors of the said the Mastin Bank, in proportion to their respective claims, as by the law in case of voluntary assignments made and provided.” By a paper at the foot of said assignment, dated the same day and signed by said Coates, he accepted said trust. The assignment and acceptance were recorded on the same day. The Metropolitan National Bank was notified of said assignment on the 5th of August, 1878, by a telegram. The bill claims, that, by the delivery of the draft to the plaintiff the Mastin Bank transferred to him $1,998 out of its moneys which were then in the hands of the Metropolitan National Bank, and that he is the owner of the said $1,998. By a stipulation, all of the defendants waive the right of a trial at law, and the plaintiff agrees that the sheriff will not bring any action against the Metropolitan National Bank by reason of any of the matters in issue in this suit. The praver of the bill is, that, the said sum of $1,998 may be adjudged to be the property of the plaintiff, and may be paid by the Metropolitan National Bank to the plaintiff, free from any claims or liens thereon of the defendant Coates, or any of the other defendants. The Mastin Bank and Coates have put in a joint and several general demurrer to the bill for want of equity, and the Metropolitan National Bank has also demurred generally to the bill for want of equity.
The question presented for decision is, whether the Metropolitan National Bank ought to pay the $1,998 which it owes, as a debtor, to the plaintiff. It is contended, for the plaintiff, that he could have sued the drawee, on the draft, before its acceptance, and even before presenting it to the drawee, and that the assignment to the defendant Coates, after the drawing of the draft and before it was presented to the drawee, did not carry to Coates the title to the $1,998, or affect the right of the plaintiff thereto; that Coates took the property of the assignor, under the assignment, subject to all the equities existing against it in favor of the plaintiff; that Coates succeeded only to the rights of the assignor; and that the drawing of the draft operated as an assignment to the plaintiff of $1,998 then in the hands of the drawee.
It was decided by the supreme court of the United States, in Bank of the Republic v. Millard, 10 Wall. [77 U. S.] 152, that the holder of a check drawn on a bank cannot sue the bank for refusing payment of it, in the absence of proof that it was accepted by the bank, or was charged against the drawer. In that case the court say: “It is no longer an open question in this court, since the de-
In this case, before the draft was presented to the drawee, the drawer assigned to the defendant Coates the entire debt due to it from the drawee, being a sum larger than the amount of the draft, as would appear from the certificate given to the sheriff by the drawee, and including the $1,998 which the plaintiff claims to recover from the drawee in this suit. The validity of this assignment, as a lawful instrument under the laws of Missouri, is not attacked or impeached by any pleading or evidence in this case. The assignment is one of “all of the lands, tenements, goods, chattels, effects and credits” of the Mastín Bank, “wheresoever situate,” “in trust for the use and benefit of all the creditors of the said the Mastín Bank, in proportion to their respective claims, as by the law, in case of voluntary assignments, made and provided.” The debt from the Metropolitan National Bank to the Mastín Bank was a debt due from a bank located in this
There is nothing in the terms of the certificate given by the Metropolitan National Bank to the sheriff which gives to the plaintiff any greater rights than he otherwise would have had. The attachment was against money due as a debt to the Mastín Bank, and the certificate merely set apart so much money to answer the plaintiff’s claim, if established. Nor is it material that Coates did not receive payment of the debt from the Metropolitan National Bank before the attachment was levied. There is nothing which shows that the attachment was levied, or that the draft was even presented, before the drawee was notified of the assignment.
The demurrers are allowed, with costs to the defendants, to be taxed, with leave to the plaintiff to move, on notice, on payment of such costs, within 20 days after service of a copy of the order to be entered on this decision, to amend the bill.