
    The Binghamton Trust Company, Respondent, v. William M. Gregory, Trustee in Bankruptcy of the Estates of Charles J. Knapp and Others, Individually and as Copartners, Constituting the Firm of Knapp Brothers, Appellant.
    Third Department,
    December 28, 1911.
    Banking — fraud — conspiracy to defraud depositors of private bank — bankruptcy — priority of creditors of bankrupt.
    Where a trust company prior to its insolvency and knowing of the insolvency of the members of an individual banking firm, one of whom was its president, loaned large sums of money to the firm to enable it to continue business and its members to continue private speculation, charging them five per cent while at the same time it was itself borrowing money at six per cent and it appears that it was accustomed to receive notes taken by the individual bankers charging them only one per cent and returning the notes to them at maturity, it is manifest that there was a conspiracy between the trust company and the individual bankers, and the depositors of the latter have on the insolvency of the firm a better title to the notes than the trust company, for it could trace its title only through an illegal scheme to defraud creditors of the individual bankers.
    Appeal by the defendant, William M. Gregory, trustee in bankruptcy, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 13th day of April, 1911, upon the verdiet of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 19th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 1st day of April, 1911, awarding the plaintiff an extra allowance.
    
      E. D. Cumming [Hinman, Howard & Kattell of counsel], for the appellant.
    
      McManus & Buckley [Peter J. McManus of counsel], for the respondent.
   Kellogg, J.:

The plaintiff trust company was managed by its president, Charles J. Knapp, who was one of the firm of Knapp Brothers which was carrying on business as individual bankers at Deposit, Delaware county, and at Callicoon, in Sullivan county. The trust company and the banks closed their doors April 8, 1909, and the Superintendent of Banks is liquidating the former as an insolvent corporation, and the firm and its members were duly adjudged bankrupts. For a long time prior to April 8, 1909, there had been a course of dealing between the trust company and the banks by which the trust company advanced them moneys from time to time, and they from time to time sent to it various notes which they had taken in their business. The notes were sent by mail, and when received were credited on general account at their face and at one per cent in addition for the time which they had to run, so that the trust company was receiving one per cent less upon the notes than the banks were to receive. When the notes approached maturity they were returned to the bank where they were payable, which received payment or renewed them at will, crediting the amount received to the trust company and sending renewal or new notes from time to time as they were received: When they closed business the amount due depositors by the bank at Deposit was $649,761.07, and by the Callicoon bank, $331,951.33. The Callicoon bank from its deposits had advanced to the bank at Deposit $190,000 without interest and without security. At the Deposit bank, of its $690,729.64 of bills receivable $638,624.72 were the obligations of members of "the firm of Knapp Brothers, their companies or those connected in enterprises with them, and which were practically without value. There was $52,104.94 of other paper and $132,000 of notes claimed by the plaintiff and in this suit. There was carried upon the books of the bank as assets overdrafts of the Knapps, their companies and associates of $129,671.23 which were practically valueless. The evidence shows that May 1, 1907, Knapp Brothers owed the plaintiff $66,742.11 in addition to their liability of $71,188.47 upon the notes which it had received upon account, and which had been credited to the firm, and that not only the amount of the notes which were transferred but the amount of the balance owing the plaintiff steadily increased until at the time the trust com-' pany and banks closed their doors the notes which had been transferred amounted to $521,087.75, and the balance due the plaintiff over and above the notes was $229,642.86. Thereupon the court stated: There being no dispute in this case that the net result of the transactions between the Binghamton Trust Company and Knapp Brothers was that Knapp Brothers received not. only during the four months’ period preceding the failure, but during ..the entire period of two years prior thereto a greater sum from the Binghamton Trust Company than the Binghamton Trust Company received from Knapp Brothers, then I hold that it is immaterial with what intents the Binghamton Trust Company or its officers or agents did business with Knapp Brothers, and it is immaterial what notice or' knowledge the Binghamton Trust Company or its officers or its agents had of the insolvency of Knapp Brothers, and that ibis action cannot be defended upon the undisputed facts with reference to the state and condition of the account between the parties. ”

The counsel for the defendant then offered to prove by competent evidence: That during the entire time between January, 1903, and April 8, 1909, inclusive, Knapp. Brothers and the individual members thereof were hopelessly insolvent to the knowledge of the members of that firm and to the knowledge of the officers and directors of the Binghamton Trust Company; that during that time the Binghamton Trust Company, from time to time, .loaned the firm sums of money which to the knowledge of the Trust Company were necessary for the firm to obtain in order to enable it to continue business, and which moneys to the knowledge of the Binghamton Trust Company and its officers and directors were being so used and used to foster private enterprises and speculations in which the Knapps and members of the Knapp family were financially interested, and in loans to the Knapps and Knapp relatives, all to the knowledge of the Binghamton Trust Comnany and its officers. That those moneys were charged to Knapp Brothers on the hooks of the Binghamton Trust Company as loaned to Knapp Brothers, and on which the Binghamton Trust Company charged Knapp Brothers interest, during which time the Binghamton Trust Company was borrowing upwards of $600,000 of New York banks and paying therefor interest at %%. That on April 8, 1909, the Binghamton Trust Company had in its possession promissory notes similar to those sought to he recovered in this action, which had been received by it from Knapp Brothers in the same course of dealing, and which it had received and credited to the account of that firm with the Binghamton Trust Company within four months preceding April 8, 1909, aggregating more than $400,000 and at that date Knapp Brothers held in their possession the notes involved in- this action which notes that firm had previously sent to the Binghamton Trust Company for credit, and which, after having been credited by the Binghamton Trust Company to Knapp Brothers account, had been returned by the Binghamton Trust Company to Knapp Brothers, and payment of all which notes had been guaranteed by Knapp Brothers to. the Binghamton Trust Company. We also offer to show by competent evidence that all the foregoing notes had been transferred to the Binghamton Trust Company from the firm of Knapp Brothers with the intent upon the part of Knapp Brothers to hinder, delay and defraud its other creditors, which intent was known to the Binghamton Trust Company and to its officers and directors at the time when the notes were received by the Binghamton Trust Company, and also that the fact that any of those notes were being or had been so transferred to the Binghamton Trust Company by Knapp Brothers was unknown to the depositors of Knapp Brothers, and had they known of that fact, they would not have made their deposits with Knapp Brothers bank and would not have given credit to Knapp Brothers; also that if these transfers are permitted to stand the creditors of Knapp Brothers will receive not to exceed 5% on their claims; that during the entire course of dealing between Knapp Brothers and the ■ Binghamton Trust Company the notes received by the Binghamton Trust Company from Knapp Brothers and returned by the Binghamton Trust Company to Knapp Brothers, were with the knowledge and consent of the plaintiff, handled by Knapp Brothers, after their return, in so far as collecting or renewing them were concerned, exactly as though they were their own, and the proceeds of such notes were retained by Knapp Brothers; also that each of these notes, as received by the Binghamton Trust Company from Knapp Brothers, was credited to Knapp Brothers account on a past due indebtedness owing by Knapp Brothers to the Binghamton Trust Company, that is they were credited on the books of the Trust Company. Plaintiff’s Counsel: We do not object to the form of proof and consent that the offer may be received as though the evidence itself were offered, but all evidence tending to show what has been stated would be objected to by us as incompetent, irrelevant and immaterial and not within the issues. Defendant’s Counsel: We offer competent evidence to prove those facts. The Court:. I hold the facts recited in the offer, if established, would not be a defense in this action, so long as the condition of the accounts is concededly as it is, and I therefore decline to receive the evidence and sustain the objection. [Exception by Defendant’s Counsel.] Defendant’s Counsel: Let me also ask at this time if this is in any way based upon our pleading ? The Court: Not at all.”

It is manifest that if the plaintiff, with full knowledge of the transaction, was bolstering Up the insolvents to enable them to carry on their banking business and thereby obtain money from depositors with, which to continue their hazardous speculations, and were from time to time secured by receiving the notes which the banks received for their- depositors’ money, the transaction was a mere confidence game to obtain money from the depositors without any ability to return the same, with the intent to engage the moneys in the hazardous speculation of the insolvent bankers. It was substantially a conspiracy between the trust company and Knapp Brothers to keep afloat the insolvent banks in order to obtain money from the public to continue the hazardous speculation of Knapp Brothers, and as between the plaintiff and the depositors in the bank of Knapp Brothers the latter have the better title to the notes in question. The court below viewed the transaction entirely with reference to the Bankruptcy Law, but the scheme of doing business was illegal and fraudulent at common law. Plaintiff must trace its title to the notes through the illegal scheme the result of which could only be to defraud the creditors of Knapp Brothers. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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