People v. St. Nicholas Bank ( 1895 )

VAN BRUNT, P. J.

I cannot concur in the conclusion of Mr.

Justice FOLLETT in the case at bar. The applicant is the assignee and the owner of the fund deposited. He is not an officer of the court, and until he is removed from his office of assignee in the manner prescribed by statute he is entitled to the possession of the assigned estate; and although he may, as far as this semidefunct bank is concerned, have made propositions which were inconsistent with his duties as assignee, such fact certainly does not authorize a holder of the funds of the assigned estate to resist the payment of the amount due to the assignee. If the assignee has miscondúcted, he should be removed. But to say that the receiver of this bank shall be entitled to hold the funds simply because the. assignee and owner of the same does not say that he intended to distribute it among the creditors, would seem to be appointing the receiver of this semidefunct bank the substituted assignee of the estate without going through any of the forms of law necessary to such substitution. Certainly, if this bank did not happen to be in the hands of a receiver, and a suit was brought by the assignee to recover the amount on deposit, no defense has been disclosed; and the fact that the bank is in the hands of such receiver, and a suit cannot be brought, does not seem to be any reason for denying relief to which the petitioner is legally entitled. The order should be reversed, and the motion granted, without costs.

O’BRIEN, J., concurs.