#### St. Mary’s Church, of Potsdam, New York, Plaintiff, *v.*The National Bank of Potsdam, and Josiah Van Vranken, as Receiver, etc., Defendants.

(Supreme Court, St. Lawrence Special Term,

May, 1898.)

Action, against a receiver of a national bank upon an impressed trust — An attempted_payment by its cashier, not executed — Preferential payment.

At half-past 3 .o’clock in the afternoon of January 25, 1897, the treasurer of a church presentéd for payment to the cashier of a national bank certain certificates of deposit issued by it, was - directed by the cashier to indorse them and had indorsed, two of them, when he was called back to the cashier’s window by the' president who forbade payment, although the bank then had funds sufficient to pay, and thereupon the bank suspended definitely. The comptroller of the currency appointed a receiver during the next month and the ■ present action was brought against the receiver to recover the deposit on the 'ground of a trust to the extent of the deposit by the agreement of the cashier to pay. The receiver demurred to the complaint.

Held, that ais the attempted paymént was not fully executed on January 25, 1897, no fund was actually set apart,for the,plaintiff and that,-as against the receiver, ,it was not entitled to any preference over other creditors; nor did it show any equities entitling it to a ■preferential payment.

Demurrer to the complaint.

A. X. Parker, for plaintiff.

Thomas Spratt, for defendants.

Russell, J.

The plaintiff seeks a preference in payment ont of the funds of an.insolvent national bank to the amount of $8,900, with interest, on the ground of a trust impressed to that amount by an agreement of the cashier to pay, which was partially accomplished, but prevented by the appearance of the president of the bank, who forbade its completion^ The facts, as they appear in the complaint' to which the demurrer is interposed are as follows; The Rational *589Bank of Potsdam closed its doors and stopped business at half-past 3 in the afternoon of January 25, 1897, and in February following Josiah Van Vranken was appointed receiver by the comptroller of the currency.

During the six months preceding the failure of the bank the plaintiff deposited various sums, in the aggregate to the amount of $8,900, taking certificates of deposit. On the afternoon of the 25th of January, about ohalf-past 3 o’clock, the treasurer of the plaintiff presented the certificates of deposit to the cashier of the bank for payment, was directed to indorse the certificates, and had indorsed two of them when he was called back to the cashier’s window in the bank, where he saw the president of the bank who forbade the payment, although the bank at that time had $18,000 in currency wherewith it might have paid the certificates, and the paying officer was ready to pay the same, and upon such refusal to pay the bank closed its doors as 'a bank and suspended business.

The only case to which I am cited by counsel for the plaintiff is that of Davis v. Elmira Savings Bank, 161 U. S. 275, and the reasoning in the opinion of the court at pages 288 and 289. But the decision ¡there adjudged the provision for a preference in the distribution of the funds of an insolvent national bank in favor of a savings bank, provided for by the laws of the state of Hew York, to be void as in conflict with United States laws requiring the distribution ratably to the creditors. The opinion refers to the cases of Scott v. Armstrong, 146 U. S. 499; San Diego County v. California Nat. Bank, 52 Fed. Repr. 59, and Massey v. Fisher, 62 id. 958. Those cases, however, simply decide that the receiver takes only ¡that which belongs to the bank, and that, as between the bank and third persons, equitable considerations may diminish the apparent -amount of assets going to the receiver by the just claims of ownership or set-off of third persons. ' The only application of this principle to the present case would be to hold that the sum of $8,900 had been equitably appropriated, and set aside as the property of the plaintiff by the transaction which took place on the last day of the bank’s business life.

It cannot be held that, as a legal act, there was .a delivery of the money to the plaintiff so that the currency which was separated from that belonging to the bank became the actual property of the plaintiff. The attempted act of payment was not fully executed.

Hor can it be claimed as an equitable appropriation on the principle that equity regards that as done which ought to have been done. The plaintiff has no equitable claim to a preferential payment. Just *590and equitable considerations- require a division of all of the property of insolvent banks among its creditors ratably. The controversy is not between the plaintiff, a creditor, ¡and the. stockholders, the owners of the bank; it is between the plaintiff as a creditor and the receiver as. trustee of all the creditors. By so much as the hank fails to pay one hundred cents upon the dollar on a claim of this amount, all of the other creditors would suffer in case of payment in full to the plaintiff of its claim. ' There are, therefore, no equitable considerations which justify the payment to the plaintiff in full and’ a consequent diminished distribution to the other creditors.

It- is unnecessary to consider the farther question as to- whether a hank which, by reason of inability ,to pay its claims in full, terminated its business career on the day in question, and over whose property a receiver was immediately -appointed for distribution as in ■case of insolvency, could under the statutes of this state have actually made the payment in question, knowing as the officers, did its precarious condition, and that such a payment would he a preference to one creditor over the others.

Let there be a judgment sustaining the demurrer, with costs-..

Demurrer sustained, with costs.