
    Frank O. Clukies, Appellant, v. The Bank of New York, Defendant, and Otto T. Bannard, as Receiver of the New England Loan and Trust Company, Respondent.
    
      Action against a receiver-appointed by the United States Circuit Court—when the complaint must allege that the action is brought with the consent of the court.
    
    An action, brought against a bank and the receiver of a loan and trust company appointed by the United States Circuit Court, to recover certain moneys which the loan and trust company had collected as agent for the plaintiff’s assignor and deposited with the bank which refused to honor the check given in payment thereof on the ground that the loan and trust company had, before the presentation of the check, gone into the hands of a receiver, relates to property in the custody and control of the loan and trust company and not to “any act or transaction ’’ of the receiver, and is not within that clause of the Federal Judiciary Act (35 TJ. S. Stat. at Large, 433) which provides, “every receiver or manager of any property appointed by any court of the United Slates may be sued in respect of any act or transaction of his in carrying on the business connected with such property without the previous leave of the court in which such receiver or manager was appointed.” Consequently the complaint in such an action is demurrable if it does not allege that the action is brought with the consent of the court appointing the receiver.
    Appeal by the plaintiff, Frank O. Clukies, from, an interlocutory judgment of the Supreme Court in favor of the defendant Otto T. Bannard, as receiver of the New England Loan and Trust Company, entered in the office of the clerk of the county of Kings' on the 23d day of December, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the complaint.
    
      George W. Bristol, for the appellant.
    
      Thomas Mills Day, Jr., for the respondent.
   Woodward, J.:

The interlocutory judgment appealed from should be affirmed. The plaintiff brings this action against the Bank of New York and Otto T. Bannard, as receiver of the New England Loan and Trust Company, the claim being that the latter company, acting as the agent of the plaintiff’s assignor, had collected certain moneys belonging to her, depositing the same with the Bank of New York, the bank refusing to honor the check given in payment, on the ground that the New England Loan and Trust Company had, before the presentation of the check, gone into the hands of a receiver. Mr. Bannard was appointed receiver in a proceeding before the United States Circuit Court for the Southern District of New York, and while the Federal Judiciary Act of March 3, 1887 (24 U. S. Stat. at Large, 552, amdg. 18 id. pt. 3, p. 470), as amended by the act of August 13, 1888 (25 id. 433, 436, § 3), provides that “ every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property without the previous leave of the court in which such receiver or manager was appointed,” we are of the opinion that the action of the plaintiff does not come within the rule of the statute. Tiie action of the plaintiff is to collect certain moneys which were in the hands of the Bank of New York as depository of the New England Loan and Trust Company, and which it is claimed had been set apart for the purpose of paying the plaintiff’s claim; it relates to the property in the custody and control of the New England Loan and Trust Company, and not to any “ act or transaction of his in carrying on the business connected with such property,” and in the absence of an allegation in the complaint that the action is brought with the consent of the court appointing such receiver, there is a failure to state facts sufficient to constitute a cause of action. This is the question presented by the demurrer, and the court below has entered an interlocutory judgment, which, under all of the authorities to which our attention it called, should be affirmed. (See 17 Ency. of Pl. & Pr. 789, 790, and authorities cited in note 2.)

The judgment should be affirmed, with costs.

All concurred.

Interlocutory judgment affirmed, with.costs.  