
    People v. Canal Street Bank.
    (New York Superior Court—General Term,
    December, 1893.)
    Prior to the insolvency of a bank and the appointment of a receiver the petitioner had a claim against the bank for deposits, and also a number of notes under discount, upon which he was indorser, which had not then fallen due, some of which were protested at maturity. The receiver having begun several actions upon the unpaid notes, application was made for an instruction to the receiver to surrender said notes on payment of the balance due to the bank, which was granted, provided that the petitioner would consent to the discontinuance of the actions, pay one-third of the costs and the balance due, with interest. Held, no error; that such application was an appeal to the favor of the court, and that there was no abuse of power or discretion.
    Appeal by Charles M. Levy, petitioner, etc., from so much of the order made at Special Term as imposes upon him the payment of fifty dollars, costs, and disallows interest on counterclaim.
    
      George Carlton Comstock, for appellant.
    
      M. J. Mulqueen, for receiver of bank.
    
      S. W. Rosendale, Attorney-General, for People.
   McAdam, J.

The defendant, a banking corporation organized under the State Banking Act, on June 6,1893, suspended payment and went into insolvency, and one Antonio Rasines was, on June ninth, appointed temporary receiver of its property and effects by an order of this court, and was afterwards, to wit, on September 12, 1893, appointed permanent receiver by it. Immediately upon the appointment of Mr. Rasines as temporary receiver he qualified as such and took possession of the property and effects of the defendant.

On the day the bank failed, but prior to the time when Mr. Rasines was appointed temporary receiver, one Charles M. Levy, the petitioner, was the owner of a claim against the bank, arising from moneys deposited therein, amounting to $1,273.45. Part of this was his own deposit, and part of it was the deposit of one Rubinsky & Rabinovitz, which had. been assigned to him prior to the appointment of the receiver.

At' that time Mr. Levy had a number of notes under discount with the bank, which were customers’ notes made to Mr. Levy’s order and indorsed by Mr. Levy as payee, which notes had not then fallen due, but which fell due at various times between July 1 and September 20, 1893, some of which were paid at maturity and others of which went to protest.

On September 20, 1893, these unpaid notes amounted, together with protest fees and interest at six per cent, to the sum of $1,796.47.

On October 6, 1893, the receiver began seven different actions on the notes against Mr. Levy in the City Court to recover the amount of t,he bank’s loans.

Mr. Levy thereupon filed a petition in this court for the purpose of having the receiver instructed to surrender to him the notes on payment of the balance due to the bank. The prayer of the petitioner was granted, provided he would pay one-third of the costs of the City Court actions, consent to their discontinuance, and pay the balance due to the bank, with interest, the two amounts being fixed at $544.07.

The appellant claims that the interest was not properly computed, in that he should have been allowed interest on the deposits as an offset to the interest on the notes. The notes, by operation of law, carried interest from the time of their maturity, while there was no agreement by the bank to pay interest on the deposits, nor was the bank put in default by any act of the petitioner prior to its suspension so as to start the running of interest.

The petitioner also claims that interest on the notes was suspended by a tender made by him of the difference between the two demands. Mo order of the court had been obtained permitting the offset claimed, or authorizing the receiver to give up the notes' without full payment, and there was no proof that the alleged tender (if operative) was kept good by a specific appropriation of the money tendered. Roosevelt v. Bull’s Head Bank, 45 Barb. 584; Becker v. Boon, 61 N. Y. 317. The dispute as to interest was trifling in amount, and the court committed no error concerning it.

The costs of the City Court actions had been legally incurred, and the court might have imposed their payment in full as a condition of granting the relief applied for. The application was not one of strict right. It was really an appeal to the favor of the court to instruct its receiver to accept a compromise on an equitable basis, rather than compel the petitioner to assert his legal rights at great expense in defense of the City Court actions, in which there would have been some recovery in favor of the receiver, with an award of costs much larger than those imposed as a condition of granting the relief applied for. . There was no abuse of power or discretion, and the order appealed from must be affirmed, with costs.

ClLDEBSLEEVE, J., COUCUrS.

Order affirmed, with costs.  