
    The People of the State of New York, Plaintiff, v. The Metropolitan Surety Company, Defendant. In the Matter of Henry Y. Fleet, Appellant, v. The Metropolitan Surety Company, Despondent.
    Third- Department,
    December 28, 1911.
    Guaranty and suretyship—dissolution of surety company—rights of creditors,'—-money deposited as, collateral! to: bond,
    A claim against a surety company which did not ripen until' after a decree of dissolution had been rendered against it may not be- allowed by the receiver.
    Where,, however, a debtor has deposited money with the surety company as collateral to indemnify it on an undertaking given to. secure the release of' attached property, the creditor, after obtaining judgment, is entitled to have the collateral transferred to- him.
    KBLLoe®, J., dissented’,, in. part,, with memorandum.
    Appeal by Henry Y.. Fleet from an order of the Supreme Court, made at the Albany 'Special Term and entered in the office of the clerk of the county of Albany on the 26th day of June, 1911, as resettled by an order entered on the 13th day of July, 1911, confirming the report of a referee which disallowed the appellant’s claim herein.
    
      Alfred T. Davison for the appellant.
    
      Edward R. Finch, for the respondent.
   Per Curiam:

’ The authorities- seem* to be conclusive- that the appellant is; • not entitled to* have* his claim allowed by the receiver because the claim- did! not ripen until he obtained Ms judgment against the attached debtor, which event did not transpire until after the judgment of dissolution against the respondent surety company was rendered. (People v. Commercial Alliance Life Ins. Co., 154 N. Y. 95; People v. Merchants' Trust Co., 187 id. 293; People v. American Loan & Trust Co., 172 id. 371; Fera v. Wickham, 135 id. 223; Attorney-General v. Equitable Accident Insurance Association, 175 Mass. 196; Goding v. Rosenthal, 180 id. 43; Casualty Insurance Company's Case, 82 Md. 535.)

If, however, the Nolan Commission Company, the property of which was attached, deposited the attached money or other collateral security with the surety company to indemnify it on its undertaking, under the principle enunciated in People v. Metropolitan Surety Co. (148 App. Div. 503), decided herewith, the present claimant can have such security transferred to himself.

The present order, however, denying him the right to have his claim allowed must be affirmed, with ten dollars costs and disbursements.

All concurred, except Kellogg, J., dissenting in memorandum.

Kellogg, J.

(dissenting);

Where a defendant is admitted to hail he is supposed to be in the custody of his surety and the responsibility of the surety is gauged in great part by that consideration. In this case the appellant had actually attached $1,920 in cash, which upon the execution- of the bond in question the law required to be released. It may fairly be considered to have been turned over to the custody of the surety or at his request upon his promise to refund it if a refund was required. I think it is not such a conditional promise as is referred to in People v. Commercial Alliance Life Ins. Co. (154 N. Y. 95), but is a promise to repay the money which has been surrendered on its account when required. I, therefore, favor *- reversal of the order.

Order affirmed, without costs.  