Interest should be allowed to respondent until the day the Superintendent of Banks took possession. (Matter of Carnegie Trust Co., 161 App. Div. 280; People v. American Loan & Trust Co., 172 N. Y. 371.) The argument now made by appellant's attorney that respondent, by the form of his claim, waived interest after October first seems an afterthought. Such issue was not presented or litigated before the Special Term. This attorney in his affidavit presented on the hearing stated the issue to be, “ That claim in this action is made by George B. Russell for interest on the amount $10,101.01 from October 1, 1930, to and including December 18, 1930, at the rate of 4% per annum and that the amount of such interest be considered as a general claim and to be paid as such.” That issue was litigated, it being contended that, under the contract between this depositor and the bank, as a matter of law he was not entitled to receive interest on his interest account deposit between the day when interest was last “ credited ” by the bank and that upon which the Superintendent took over the bank for liquidation. This was decided. Nothing indicates that a question of jurisdiction was raised. Doubtless this may be done belatedly. Statutory jurisdiction exists. (Banking Law, § 78.) “ Such dividends shall be paid to such persons, in such amounts, and upon such notice, as the Supreme Court in the judicial district in which the principal office of such corporation * * * is located, may by order direct.” And, doubtless, if no statute existed, the court could interfere to protect the rights of creditors if the Superintendent of Banks acted arbitrarily, negligently or illegally. (Matter of Egan, 258 N. Y. 334, 342.)
I favor an affirmance of the order and decision.
Order reversed on the law and facts, and petition dismissed, with costs. The first finding of fact, not numbered, and findings of fact numbered 2 and 3, are reversed.