#### Edwin P. Shattuck, as Receiver of the New York Investment and Improvement Company, Appellant, *v.*Guardian Trust Company of New York, Respondent.

First Department,

January 10, 1908.

Stay of action pending determination of suit in equity denied.

An action by the receiver of a corporation to recover moneys deposited with a trust company and alleged to have been paid out on forged checks and converted by, the president of the insolvent corporation should not be stayed pending the determination of a. suit in equity in which both plaintiff and defendant were made parties for the purpose of ascertaining, their respective *407rights to moneys in the hands of a third party collected on life insurance policies assigned by the' president of the insolvent corporation with direction to the assignee to pay the defendant trust company out of the proceeds a certain sum on account of the corporation. This, because the plaintiff as receiver had no connection with the proceeds of the life insurance policies, and if the forgery of the checks drawn on the defendant be established, he will be entitled to recover the deposit irrespective of the disposition of the proceeds of the insurance policies.

Appeal by the plaintiff, Edwin P. Shattuck, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1907? granting a stay of the proceedings herein until the final'determination of another action, except that pai't of said order which excludes from such stay the decision upon the issues of law arising upon the plaintiff’s demurrer to a further and separate defense of the defendant.

*Julian C. Harrison,*for the appellant.

*Clarence P. Moser,*for the respondent.

Ingraham, J.:

The plaintiff in this case is suing as receiver of the New York Investment and Improvement Company, to recover from the defendant a deposit, the amount in which he alleged the defendant is indebted to the corporation. The defendant claims that it paid out this deposit upon certain checks drawn by the corporation, the plaintiff claiming that one of the signatures to these checks was forged. The question at issue in this action is simply as to whether or not the checks upon which this deposit was paid- out were or were not forged. It is alleged that Spier, the president of the corporation, received the money and appropriated it or the greater part of it to his own'use. Subsequently Spier delivered to Alfred Lauterbach, secretary of the corporation, life insurance policies calling for the payment upon his death of $75,000, with a direction to Lauterbach that upon receipt of the sums due on the policies he should pay to the defendant, the Guardian Trust Company, for account of the New York Investment and Improvement Company, $68,067.09. Shortly after- Spier died, Lauterbach collected' from *408the insurance companies $75,000 and filed a bill in equity,' making the plaintiff and the defendant parties, asking that the rights to this money of the various parties to the action should be determined. The. court below has stayed the trial of this action until the determination of the interpleader action in relation-to-the insurance moneys. I do notthink such an order was justified. Theplaintiff as receiver is suing for an amount claimed to be owing from the defendant. The plaintiff has no connection with the proceeds of these policies of life insurance, and if lie can establish the fact that the checks drawn on the defendant were forgeries, he will be entitled to recover the amount of the deposit remaining to the credit, of the corporation, disaffirming the- payment on account of the forged checks. The right of the plaintiff to recover cannot in any event depend upon the disposition that is made of the proceeds of the life insurance policies. If the cheeks- are forged, he would be entitled to recover the amount on deposit, whether the defendant could collect the insurance money or not. If it should appear that the checks were not forged and that Spier appropriated the money of the corporation, then the corporation might have a claim against Spier and a right to enforce this trust, or whatever it may be said to be, as to the proceeds of the life insurance policies. But irrespective of the provision as to what shall be done with the insurance money, if the checks are forgeries the plaintiff is entitled to recover in this action.

' It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion for a stay denied, with ten dollars costs.-

Pattbesost, P. J., 'Laughlin, Claeke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.