I concur in the opinion of Mr. Justice Laughlin, but it seems to me that there are additional grounds for reversal.
■ While the trustee in bankruptcy is a party to the action, there is no controversy between the plaintiff and such trustee. The trustee has no interest in the funds in question. (See opinion of Giegerich, J., in Gilbert v. Mechanics & Metals Nat. Bank;* affd., 176 App. Div. 915; affd., 221 N. Y. 648.) So the only parties in interest are the plaintiff and the Mechanics and Metals National Bank of New York, both of whom are seeking to obtain the sum involved in this action. The foundation of the claims of both of these parties is in equity, the defendant Mechanics and Metals National Bank claiming the right to retain the deposit on the doctrine of setoff, and the plaintiff on the ground that the proceeds of his check now remain on deposit in the Mechanics and Metals National Bank of New York, and that as between that bank and the plaintiff, on the principles of equity, the plaintiff is entitled to receive the money. It is very clear that the aforesaid bank never relied on this deposit in extending credit to A. Bolognesi & Co., and also that the deposit is the actual money received from plaintiff’s check. The rights of the defendant bank are dependent entirely upon the doctrine of equitable setoff, which has, to a certain extent, been recognized by the Bankruptcy Law. The interests of other creditors and those of the trustee in bankruptcy are in no respect involved in this action. To permit the defendant bank to lay hold of that portion of the deposit which is without any question the proceeds from plaintiff’s check, would be contrary to equity. Therefore, it seems to me that, on principles of equity, the plaintiff, having traced the funds into the deposit in the defendant bank, is entitled to receive his money, and should not be deprived of it upon the theory of setoff, as asserted by the defendant bank, merely because the check happened to fall into the bank’s possession as a depositary.
See 95 Misc. Rep. 364.— [Rep,