In re S. Lunghino & Sons

Kruse, P. J. (dissenting):'

1. As to the power of the court I am of the opinion that not only has the court power to review the action of the Superintendent in originally taking over the bank but that it may in a proper case require the assets to be turned back, although the action of the Superintendent in taking over the bank may originally have been proper. Section 60 of the Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369) seems to give ample authority for so doing in a proper case.

The scandal which arose in connection with the winding up *304of affairs of banks grew out of the exorbitant fees of receivers and counsel. The Legislature, therefore, imposed upon the Superintendent of Banks the duties theretofore exercised -by receivers. While the question as to whether a bank shall be taken over or its assets turned back in the first instance is to be determined by the Superintendent of Banks, I think his action is nevertheless subject to review by the courts, although I agree that his action should not lightly be interfered with.

2. As to the propriety of making the order, in view of the changed conditions, the question is academic. It now appears by affidavits and papers submitted on the application to dismiss the appeal that for several years and since the order was made the bank has been permitted to Continue in business. It is in better condition than it was when the order was made turning back the assets. There are new depositors, new creditors, and new rights have intervened. A reversal of the order upon the ground that it was made improvidently would likely result in harm to the creditors and perhaps ruin the bankers and accomplish nothing but harm. If in the judgment of the Superintendent the business has not been conducted properly or lawfully and the facts have been such as to justify that judgment, I know of no legal reason which would have prevented the Superintendent from taking action against the bankers. That, however, has not been done, but the business has been permitted to continue since the order was made, as already stated.

I think under the circumstances the appeal should be dismissed.

Motion to dismiss appeal denied. Order reversed, with ten dollars costs and disbursements,. and application denied.