#### In the Matter of the Carnegie Trust Company in Liquidation. In the Matter of the Application of Jacques Lebaudy to Have Returned to Him 150 Shares of Stock of the Johannesburg Consolidated Investment Company, Limited. Jacques Lebaudy, Appellant; George C. Van Tuyl, Jr., as State Superintendent of Banks, Respondent.

First Department,

April 17, 1914.

Banking — authority of Superintendent of Banks to exact receipt as condition of delivery of warrants for capital stock held by bank in process of liquidation—jurisdiction of court under section 19 of Banking Law. *

The Superintendent of Banks has no right to exact, as a condition of delivering warrants for capital stock held by a trust company now in the process of liquidation, the execution of a release of liability on the part of the trust company, or of himself or of his deputy, providing that the claimant thereby releases and forever discharges them and “their successors and assigns from any and all liability in connection with the said warrants for the said stock or for the detention thereof; ” but he is entitled to an ordinary receipt so that he may have an official record of the acknowledgment of the delivery of the warrants.

Although the court may not have authority under section 19 of the Banking Law to decide as to the form of such a receipt upon the application of the claimant, without the consent of the Superintendent of Banks, it may render a decision where the affidavit presented by the Superintendent of Banks is in effect a consent to its jurisdiction. '

Appeal by J accjues Lebaudy 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 18th day of March, 1914, denying his motion for an order requiring the Superintendent of Banks to release and turn over to him six warrants for twenty-five shares each of the capital stock of the Johannesburg Consolidated Investment Company, Limited.

*Walter E. Ernst,*for the appellant.

*Frank M. Patterson,*for the respondent, George C. Van Tuyl, Jr., Superintendent of Banks.

Laughlin, J.:

On or about the 7th day of January, 1911, the Superintendent of Banks, pursuant to the provisions of section 19 of the *77Banking Law (Consol. Laws, chap. 2 [Laws of 1909, chap. 10], as amd. by Laws of 1910, chap. 452), took charge of the Carnegie Trust Company for the purpose of liquidation. He found the warrants for the capital stock in question with the assets of the trust company; but, on investigation, a special Deputy Superintendent of Banks determined that they had been left with the trust company “for safekeeping for account of” the appellant and that they belonged to him, and through his attorney he notified an attorney for the appellant that he held the warrants for the stock, and finally formally notified other attorneys for appellant that he was ready to deliver the warrants, but he required a receipt and release from appellant according to a form which he inclosed. The proposed receipt recites the facts and provides that the appellant thereby releases and forever discharges the trust company, the Superintendent and Deputy Superintendent of Banks, both individually and officially, and ‘ ‘ their successors and assigns, from any and all liability in connection with the said warrants for the said stock or for the detention thereof.” The appellant has made no claim against the trust company or the Superintendent or Deputy Superintendent of Banks; but he denies their right to exact the receipt.

Since the Superintendent of Banks does not claim any right, by virtue of a lien or otherwise, to retain possession of the warrants, it is manifest that he has no right to exact, as a condition of delivering them, the execution of a release of liability on the part of the trust company, or of himself or of his deputy for wrongful detention. The appellant manifested a willingness to execute an ordinary receipt, and it is quite within the province of the Superintendent in the circumstances to exact such a receipt so that he may have an official record of the acknowledgment of the delivery of the warrants to the appellant.

It is very doubtful, however, whether the court, without the consent of the Superintendent of Banks, would be authorized to give any direction in the premises on the mere application of the claimant on notice. The Legislature has provided in said-section 19 of the Banking Law for a summary application to the Supreme Court, in the nature of a special proceeding, *by the Superintendent of Banks,*with respect to a dis*78position of unclaimed deposits, or stock or other property,, which has been left with the corporation or banker, whose business he has taken charge of, as bailee for safekeeping, where the same is not removed after notice by him, as therein provided; but that section contains no express provision authorizing the court to summarily direct, *on the application of the claimant,*the surrender of property by the Superintendent of Banks. We think, however, that the Superintendent of Banks intended, by the affidavit presented by his deputy, to submit to the court for decision the question as to his right to exact the receipt and release in the form which he prescribed. The Deputy Superintendent of Banks in his affidavit draws attention to the fact that the proceeding is unprecedented, but says that he is willing to surrender the property, and does not desire to raise any technical objection to the form of the application, “but only asks that he may be permitted to turn over said shares on the proper order of this court, releasing and discharging the Superintendent of Banks from any liability in connection with such shares of stock. ” We construe that statement as a consent to the exercise of jurisdiction by the court as if the application had been made by the Superintendent of Banks. Inasmuch as it appears that there was no substantial reason for the appellant’s refusal to execute the receipt and release and he is standing upon his technical legal rights, and the question is new no costs will be imposed.

It follows that the order should be reversed and motion granted requiring the surrender of the warrants for the stock, upon the execution and delivery by the appellant to the Superintendent or Deputy Superintendent of Banks of a receipt therefor duly acknowledged.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed and motion granted as stated in opinion. Order to be settled on notice.