
    Maybelle D. Gouert, Plaintiff, v. The Mechanics and Metals National Bank of the City of New Tork, Joseph H. Stoppani and Walter B. Hotchkin, Individually and Composing the Firm of Stoppani & Hotchkin, Abbaham S. Gilbert, as Trustee in Bankruptcy of Joseph H. Stoppani and Walter B. Hotchkin, Individually and Composing the Firm of Stoppani & Hotchkin, and William P. Fisher, Defendants.
    (Supreme Court, New York Special Term,
    May, 1916.)
    Banks — determining title to assets remaining in — bonds — actions — contracts.
    Where negotiable bonds, loaned to a firm of stockbrokers for the purpose of being shown as part of its assets, were immediately hypothecated by it with its bank to secure its indebtedness, and the bonds were sold by the bank under a collateral agreement before notice from the owner who was not indebted to .the stockbrokers, said owner, though not a party to an action against the bank by a customer o£ the stockbrokers, is bound by a decree therein made determining the title to the assets remaining in the hands of the bank under the collateral agreement.
    Action to marshal the assets of Stoppani & Hotchkin.
    House, Grossman & Vorhaus, for plaintiff.
    Frank M. Patterson, for the Mechanics & Metals National Bank.
    Leon Lauterstein, for defendant Gilbert.
    William P. Fisher, in person.
   Newburger, J.

In February, 1910, the defendantsStoppani & Hotchkin executed a general collateral agreement with the defendant the Mechanics and Metals National Bank whereby the said firm agreed from time to time to deposit certain securities as- collateral for loans to be made to them by the bank. The firm from time to time borrowed certain sums, of money and deposited certain bonds and stocks as collateral security. On the 18th day of May, 1914, the firm of Stoppani & Hotchkin failed, and made a general assignment to Abraham S. Gilbert for the benefit of their creditors, and at which time they were indebted to the Mechanics and Metals National Bank in the sum of $49,000, and had pledged with said bank certain bonds and stocks. Subsequently, and pursuant to said collateral agreement, the bank disposed of all of the securities with the exception of 100 shares North American Company stock and 100 shares American Smelting and Refining Company stock, and applied the proceeds toward the indebtedness of the firm, but there remained and still remains due to the bank the sum of $6,435.92 and interest. The defendant Fisher carried with the defendants Stoppani & Hotchkin a speculative account upon which he was indebted in the sum of $6,639.04, and to secure which the said firm held certain securities, including the shares of the American Smelting and Refining Company heretofore referred to as having been hypothecated with the defendant bank by Stoppani & Hotchkin under the collateral agreement. Upon the 24th day of February, 1914, the plaintiff loaned to Stoppani & Hotchkin $4,000 par value, city of New York fours and $6,000 par value U. S. Steel Sinking Fund five per cent bonds, upon the representation and understanding that they might be shown together with the assets of the firm to a committee of the Stock Exchange, who were about to examine the books of said firm of Stoppani & Hotchkin. Plaintiff was not indebted to said firm, nor did she have any account with them. Immediately upon obtaining said securities from plaintiff, Stoppani & Hotchkin delivered the same to the Mechanics and Metals National Bank to secure their indebtedness, and subsequently they were sold by the bank on May 26,1914, -under the collateral loan agreement. On "the 3d day of June, 1914, plaintiff served a written notice on the bank of her ownership, and demand for her securities. In an action brought by the defendant Fisher against the Mechanics and Metals National Bank, it was decreed that the defendant bank may liquidate the balance due on its loan to Stoppani & Hotchkin out of the 100 shares of the North American stock and the 100 shares of the American Smelting and Refining Company stock, and after liquidation to pay over any surplus to William P. Fisher, and also awarding judgment in favor of said Fisher against Stoppani & Hotchkin in the sum of $13,335.32, with interest, and further directing that upon the payment by Fisher to said bank of the sum of $6,435.92 and interest, the North American Company and American Smelting and Refining Company stock should be delivered to said Fisher. This action is now brought to marshal the assets of Stoppani & Hotchkin. An examination of the record in Fisher v. Mechanics and Metals National Bank and the opinion of Mr. Justice Shearn (89 Misc. Rep. 587) leads to but one conclusion: that whatever assets of Stoppani & Hotchkin remain in the hands of the bank under the collateral agreement are disposed of by the decree in that action. It is conceded by plaintiff herein that the assets that she desires to impress with her claim are those referred to in the judgment of Fisher against the Mechanics and Metals National Bank. While it is true that the plaintiff was not a party to the Fisher suit, yet this court having determined the title to the assets remaining in the hands of the bank disposes of plaintiff’s claim thereto.

Complaint dismissed, but without costs.  