273 N.Y. 200 | NY | 1937
The complaint alleges that defendant Westchester Trust Company, in order to induce plaintiff to purchase a mortgage participation certificate, fraudulently represented to her that the mortgagor owned certain premises, that the mortgage held by the trust company constituted a first mortgage and that plaintiff, in reliance upon such representations, purchased a first mortgage participation certificate. Defendant Superintendent of Banks took possession as liquidator of the business of the trust company January 2, 1934, and the complaint alleges that on the same day, in compliance with section 72 of the Banking Law (Cons. Laws, ch. 2), he mailed a notice to all creditors of the trust company whose names appeared on its records to file claims with him on or before February 2, 1934. Plaintiff alleges that her name did not appear on the records as a creditor or claimant, that she did not receive a notice to file a claim, that she failed to file a claim "as required by section 72" and failed to comply with "the requirements of section 76" for the reason that she did not discover the fraud practiced upon her until long after the expiration of the date "fixed for the filing of such claim" and long after the date "fixed to comply with the requirements of section 76." She alleges further that in May, 1935, after discovery of the fraud, she elected to rescind the sale of the certificate and in March, 1936, she filed a claim with the Superintendent demanding the return of the purchase price. This action was commenced April 9, 1936.
The certified question requires an answer whether the complaint states facts sufficient to constitute a cause of action. *203
Section 72 directs the Superintendent to "notify all persons who may have claims" against the corporation to present them and make proper proof within four months of the date of the notice. Inasmuch as the complaint alleges that plaintiff's name did not appear as a creditor on the books of the corporation, the Superintendent was under no duty to mail the notice to her. Notice by publication to all other creditors is sufficient (Banking Law, § 72; Matter of Societa, etc., Di Savoia v.Broderick,
That provision of section 72 which requires notice by the Superintendent of a specified time as the last date for the presentation and proof of claims does not constitute a statute of limitations but merely establishes a condition precedent. (Matter of Bank of United States,
The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in this court and in the Appellate Division. The certified question is answered "No."
CRANE, Ch. J., HUBBS, LOUGHRAN and RIPPEY, JJ., concur; LEHMAN and FINCH, JJ., taking no part.
Ordered accordingly. *205