
    Isidor Hochberger, Appellant, v. Elek J. Ludvigh, as Receiver in Proceedings Supplementary to Execution of Max Eisen, Judgment Debtor, Respondent.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Election of- remedies: Inconsistency of remedies: Acts constituting election — Commencement of suit.
    Where a bank, after notice of the assignment of a customer’s deposit, pays a part thereof to a subsequently appointed receiver in supplementary proceedings of the depositor, the assignee may sue either the bank or the receiver; but, by bringing an action by leave of the court against the receiver, as such, he releases the bank.
    ' Appeal by the plaintiff from a judgment of the City Court of the city of "New York, dismissing the complaint.
    Rosenthal, Steckler & Levi, for appellant.
    Albert Flack, for respondent.
   Goff, J.

This is an appeal by plaintiff from a judgment of the City Court which dismissed the complaint upon the opening. The facts are not disputed. The complaint alleges that one Eisen assigned a $500 hank deposit to plaintiff, who gave notice to the bank of such assignment. More than three and a half months later, defendant was appointed receiver in supplementary proceedings, by an order of the City Court of Eisen. The bank was at once notified of the appointment, and, at the end of some three more months, paid $250 of Eisen’s deposit to defendant who took it in his capacity as receiver without knowledge of the prior assignment. Plaintiff notified defendant of his interest and demanded payment of the amount, which was refused. He then secured an order from the court authorizing him to bring an action against the receiver for the recovery of the amount. Ho tort is alleged, the action being against the receiver in his official capacity on the theory of an implied assumpsit to pay the money to plaintiff in lieu of the older remedy of intervening in the original action by motion. According to the undisputed authorities, plaintiff “ may ignore the payment and sue the trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor- but he cannot do both.” Fowler v. Bowery Savings Bank, 113 N. Y. 450, 455. In that case the bank had paid the money to the executor of J., when it belonged to the executor of J.’s wife. The latter obtained judgment against J.’s executor; but, failing of execution, he brought a second action against the bank which had held the money in trust for the wife. That first action was brought against an officer of the court, as in the case at bar, nor does it appear that he was sued other than in his representative capacity. On the contrary, in his exhaustive opinion, Mr. Justice Earl says: “By suing Flynn (J.’s executor) he would adopt and ratify the act of the bank in making payment to him, and his claim would be that the money due to him had, in fact, been paid to Flynn and that Flynn had received it to and for his use.” The case cited is closely analogous to the one at bar and is clearly controlling. Defendant has utterly failed to advance any reason why any other course should be followed. Defendant is not placed in the position of being compelled to pay out money without an order from the court of which he is an officer. On the contrary, he voluntarily assumes the position of questioning an order of the same court which, in effect, directed this action to be brought for the purpose of determining the title to the sum in question. Although it was optional with plaintiff to sue the bank or defendant, by choosing the latter he released the bank and thus happily prevented a multiplicity of actions.

For these reasons the judgment of the lower court must be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Dayton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  