Dutcher v. Importers & Traders' Bank

Pratt, J.

As a matter of fact the Marine Bank was the agent of the Central Bank in making the payment to defendant of the money here in controversy. It is not very material what was the course of business between the Central Bank and the Marine Bank as long as the Central Bank furnished the funds and the Marine Bank paid them out for account of the Central Bank. Neither is it material to the defendant how the money was paid to it.

*402The defendant had a claim against the Central Bank. The Central Bank made provision for its payment and paid it by funds in the possession of the Marine Bank.

The only question to be considered is whether this payment was in violation of sec. 4, tit. 4, chap. 18, part 1 of the Revised Statutes, it being conceded that at the time the payment was made the Central Bank was actually insolvent.

It is now settled that actual insolvency, as it regards transfers, is the same in legal effect as the term in contemplation of insolvency.”

It was the intention of the legislature, in prohibiting these transfers, to establish the doctrine that no person should reap a pecuniary benefit from the wrongful acts of bank officers. This is not only plainly expressed in the statute, but is sound public policy.

The validity of the transfer, or payment, is not made to depend upon the chance that proof is obtainable to show that the creditor or transferee received the assets with knowledge that the debtor .-corporation was insolvent, but upon the fact that it was insolvent at the time.

The statute has made it the duty of the officers of such corporations, when becoming insolvent, to stop business and distribute the assets equally among its creditors.

This question has been fully discussed and settled in the case of Robinson v. Bank of Attica, 21 N. Y. 406. See also Brouwer v. Harbeck, 9 N. Y. 589; Sibell v. Remsen, 33 id. 95.

That the plaintiff (assignee in bankruptcy) can maintain this suit is settled in this district by the decision in the case of Hausemann v. Claflin decided at the May general term, 1873.

That there was no disputed question of fact in this case is evinced ffiy there being no request by either party to submit any question to the jury.

The plaintiff is entitled to judgment upon the verdict. •

Judgment upon the verdict.