
    George C. Van Tuyl, Jr., as Superintendent of Banks of the State of New York, Respondent, v. New York Real Estate Security Company, Appellant, Impleaded with New York State Investing Company and Others, Defendants.
    Second Department,
    November 27, 1912.
    Banks — action by Superintendent of Banks under section 19 of Banking Law to enforce bond and mortgage held by delinquent corporation— pleading — complaint — statutes — lis pendens — amendment — questions raised by motion for judgment on pleadings.
    Where an action by the Superintendent of Banks under section 19 of the Banking Law to enforce a bond and mortgage given to a delinquent trust company is brought in the name of the Superintendent instead of “in the name of the delinquent corporation,” as required by the statute, the summons and complaint may be amended so as to correct the title of the action.
    But the amendment should not be made nunc pro tunc, and there is no power to amend the notice of Us pendens so as to make it operate as constructive notice to parties whose rights may have accrued in the interval. A new notice of lis pendens may be filed.
    The plaintiff, having pleaded the making and delivery of the bond 'and ' mortgage, the taking possession of the trust company and its assets, including said bond and mortgage, and default in the payment thereof, a complete cause of action was set forth. It was not necessary to plead the provisions of the Banking Law, it being a general statute.
    A motion by a defendant for judgment on the pleadings, upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action, does not present the question of want of capacity to sue.
    Rich and Hirschberg, JJ., dissented, with opinion.
    Appeal by the defendant, the New York Real Estate Security Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of- Westchester on the 29 th day of May, 1912, denying the said defendant’s motion for judgment on the pleadings and granting the plaintiff’s countermotion to amend the supplemental summons and amended complaint and amended notice of pendency of action.
    
      William D. Gaillard, for the appellant.
    
      Frank M. Patterson [George V. Smith with him on the brief], for the respondent.
   Burr, J.:

We do not think that defendant is entitled to judgment on the pleadings. If we concede the rule that in the absence of statutory authority or allegation and proof of an assignment, one who is not a party to a sealed instrument cannot maintain an action to enforce the covenants thereof, in this case there is such statutory authority and it is sufficiently pleaded.

After alleging the giving of a bond by defendant to the Carnegie Trust Company, secured by a mortgage upon its property, the complaint further alleges: “That on the 7th day of January, 1911, Orion H. Cheney, at that time Superintendent of Banks of the State of New York, took possession of the assets, property and business of the defendant Carnegie Trust Company, pursuant to section 19 of the Banking Law of the State of New York, and since said date the assets, property and business of said defendant have remained in the custody of said Banking Department; that on the 23d day of May, 1911, plaintiff was duly appointed Superintendent of Banks of the State of New York, and that he has duly qualified and is now acting as such, and pursuant to said Banking Law of the State of New York is now in possession of the bond and mortgage hereinabove mentioned, and of the assets and business of said defendant Carnegie Trust Company, and is now collecting the debts due and owing thereon.”

The Banking Law (Consol. Laws, chap. 2 [Laws of' 1909, chap. 10], § 19, as amd. by Laws of 1910, chap. 452) provides that: “Upon taking possession of the property and business of such corporation or individual banker the Superintendent is authorized to collect moneys due to such corporation or individual banker, and do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof as hereinafter provided. The Superintendent shall collect all debts due and claims belonging to it. * * * For the purpose of executing and performing any of the powers and duties hereby conferred upon him, the Superintendent may, in the name of the delinquent corporation or individual banker, prosecute and defend any and all suits and other legal proceedings.”

The Banking Law being a general law, it is not necessary to plead its provisions in order to set forth the powers and duties of the Superintendent of Banks or a cause of action arising thereunder. Having pleaded the making and delivery of this particular bond and mortgage, the taking possession of the trust company and its assets, including said bond and mortgage, and default in the payment thereof, a complete cause of action is set forth. The difficulty with the pleading in its present form is that, although the statute expressly authorizes the Superintendent of Banks to maintain the action, it requires him to sue in the name of the delinquent corporation. (Alexander v. Union Surety & Guar. Co., 89 App. Div. 3.) Its fault is not that it does not set forth a cause of action against the defendant New York Beal Estate Security Company which the Superintendent of Banks may enforce, but that the latter has not legal-capacity to maintain the action in his own name. (Code Civ. Proc. § 488; Viburt v. Frost, 3 Abb. Pr. 119; S. C., under title Hobart v. Frost, 5 Duer, 672.) This defect appearing on the face of the complaint is waived by failure to demur. (Code Civ. Proc. § 499.)

. The only question which defendant raises by its motion for judgment on the pleadings is, that the complaint does not state facts sufficient to constitute a cause of action. This does not present the question of want of capacity to sue. (Palmer v. Roods, 116 App. Div. 66; Fulton Fire Insurance Co. v. Baldwin, 37 N. Y. 648; Phoenix Bank v. Donnell, 40 id. 410; Stone v. Groton Bridge & Mfg. Co., 77 Hun, 99; Town of Pierrepont v. Lovelass, 4 id. 696; revd. on another point, 72 N. Y. 211; Bank of Lowville v. Edwards, 11 How. Pr. 216.)

We think, also, that plaintiff’s motion to amend the supplemental summons and amended complaint should have been granted, so that in said summons and complaint the title should be Carnegie Trust Company by George C. Van Tuyl, Jr., Superintendent of Banks of the State of New York.” (Code Civ. Proc. § 723; Dean v. Gilbert, 92 Hun, 427; Hulbert Brothers & Co. v. Hohman, 22 Misc. Rep. 248; Kaplan v. New York Biscuit Co., 5 App. Div. 60; Spooner v. D., L. & W. R. R. Co., 115 N. Y. 22; Heckemann v. Young, 18 Abb. N. C. 196; Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262.) By this motion it is not sought to name a new party plaintiff; on the contrary, it is apparent that the cause of action is that of the Carnegie Trust Company. The Superintendent of Banks occupies to this delinquent corporation a position similar in some respects to that of the guardian ad litem of an infant plaintiff. If, in such case, the action is brought in the name of the guardian instead- of the infant, an amendment will be allowed. (Kaplan v. New York Biscuit Co., supra; Spooner v. D., L. & W. R. R. Co., supra.) Dean v. Gilbert (supra) is directly in point. In that case the action was brought in the name of Isaac E. Dean, as president of the Ontario Improvement and Gas Company. It appeared from the complaint that this was a corporation. It was held that the summons and complaint should be amended so that the name of the plaintiff should appear as the Ontario Improvement and Gas Company. As the court there, said: “The allowance of the amendment sought could be treated as a cor- ' rection of the name of the plaintiff, rather than the substitution of an entirely distinct and different party from that named and referred to in the allegations of the complaint.”

The amendment, however, should not be made nunc pro tunc, and there is no power to amend the notice of lis pendens so as to make it operate as constructive notice to parties whose rights may have accrued in the interval. This relief is not needed, since the new notice of lis pendens may be filed,

The order should be modified in the respect indicated, and as modified affirmed, with teii dollars costs and disbursements,

Thomas and Woodward, JJ., concurred; Rich, J., read for reversal, with whom Hirschberg, J., concurred.

Rich, J. (dissenting):

I dissent. Section 19 of the Banking Law (Consol. Laws, chap.. 2 [Laws of 1909, chap. 10], as amd. by Laws of 1910, chap. 452) provides that “for the purpose of executing and performing any of the powers and duties hereby conferred upon him, the Superintendent may, in the name of the delinquent corporation or individual banker, prosecute and defend any and all suits and other legal proceedings,” and the appellant contends that this section limits plaintiff’s authority to the prosecution of this action in the name of the delinquent bank.

The action is upon a sealed instrument, to which the plaintiff was not a party, and in the absence of statutory authority, he could not maintain an action to enforce the covenants thereof.

No assignment is alleged, and no statutory authority is pleaded. (Henricus v. Englert, 137 N. Y. 488; Alexander v. Union Surety & Guar. Co., 89 App. Div. 3.) If the respondent, the Superintendent of Banks, stands in a similar position to a receiver of an insolvent corporation, as he contends, and in the absence of an express statute to the contrary, may maintain an action to foreclose a mortgage owned by a bank under his supervision in his own name, the position of the plaintiff is not benefited because the provision of the Banking Law referred to requires that such actions be brought in the name of the bank, and Emits the authority of the Superintendent accordingly.

It is claimed that the word “may ” in the section is permissive, not mandatory, and does not affect the plaintiff’s right to bring the action in his own name. In this, I think, he is in error. (Alexander v. Union Surety & Guar. Co., supra.) The defect appearing upon the face of the complaint, it cannot be said to state a cause of action. This court, in Prankard v. Cooley (147 App. Div. 145), affirmed the rule that “As the complaint shows that the plaintiff had not capacity to sue, it did not state facts sufficient to constitute a cause of action,” and held that the objection could not be waived, even if not presented by demurrer or answer.

It follows, I think, that the motion for judgment upon the pleadings should have been granted. The amendment was not authorized by law. (Pom. Code Rem. § 317; Doyle v. Carney, 190 N. Y. 386.)

I vote to reverse the order, with ten dollars costs and disbursements, and to grant defendant’s motion for judgment on the pleadings, with ten dollars costs.

Hirschberg, J., concurred.

Order modified so far as it provides for an amendment of the notice of lis pendens, and as so modified affirmed, with ten dollars costs and disbursements.  