Schluter v. Bowery Savings Bank

Brady, J.

In the opinion rendered on the appeal herein it was stated that the payment made by the defendant of the fund in controversy was made to the administrator of the intestate depositor appointed by the surrogate of Hudson county, N. J., on production of the pass-book and letters of administration, and letters testamentary, also, issued to him by the surrogate of this county. The last statement was incorrect, inasmuch as the administrator named had not received letters testamentary; and a reargument was ordered for that reason. The erroneous statement being withdrawn, the result must nevertheless be the same, inasmuch as it is well settled that a payment made by a domestic debtor to a foreign administrator, even though voluntary, is valid, in the absence of any intervening equity or right. Parsons v. Lyman, 20 N. Y. 112; reaffirmed in Wuesthoff v. Insurance Co., 14 N. E. Rep. 811, (Court of Appeals.) The payment was made upon demand by a person authorized to receive it; and, as we have seen from the authorities cited in the former opinion, the defendant would not have been justified in refusing to pay upon the demand made, for the reason that no defense was apparent. If this view be incorrect, however, the plaintiff is still remediless in this action, for it appears that the depositor left a will by which Charles Sier was nominated as her executor, who received letters testamentary on its probate in this county, which took place on November 17, 1875, nearly one month after the payment by the defendant to the foreign administrator. If the trust created by the deposit did not devolve on the administrator by reason of his foreign appointment,—as to which, qucere,—it did on the executor; and he demanded the money from the defendant within a few days after his appointment, although it was subsequent to the payment mentioned. If that payment should beheld to have been erroneously made to the administrator,—which is not conceded,—then the executor, having been appointed in this state, and the fund being here, is the legal representative of the depositor, upon whom the trust devolved, (Boone v. Bank, 84 N. Y. 83,) andduly authorized, therefore, to obtain the fund in dispute by proper proceedings for that purpose. In all points of view, therefore, the conclusion heretofore arrived at is correct and must be sustained. Ordered accordingly.