#### Peters *v.*Foster.

*(Supreme Court, General Term, First Department.*

May 23, 1890.)

1. Banks and Banking—National Banks—Power of Receiver to Sue.

Under Code Civil Proc. N. Y. § 449, excepting from the provision that an action must be prosecuted in the name of the real party in interest a person expressly authorized by statute to sue, the receiver of a national bank may sue for assessments levied on the stockholders, being so authorized by the act of congress relating to national banks.

2. Receivers—Foreign Receivers—National Banks.

The receiver, appointed by the comptroller of the currency, for a national bank located in another state, is not a foreign receiver, and may sue in the courts of New York for an assessment levied on shareholders of the bank, without regard to the doctrine of comity.

8. Same—Right to Sue—Comitt.

A foreign receiver will be permitted by comity to sue in the courts of New York, where there is no question of local rights or interests.

*390Appeal from special term, New York county.

Action by William H. Peters, as receiver of the Exchange National Bank of Norfolk, Va., against Sarah Gibson Foster, to recover an assessment levied on defendant’s stock in the bank. A demurrer to the complaint was overruled, and defendant appeals.

Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.

*JBenjamin B. Foster,*for appellant. *Charles F. MaoLean,*for respondent.

Barrett, J.

The Exchange National Bank of Norfolk, Va., was organized under the'laws of the United States, and was located in the state of Virginia. It was therefore a foreign corporation, as defined by the Code of Civil Procedure, (section 3343, subd. 18.) The question is whether the plaintiff, as receiver of this foreign corporation, appointed by the comptroller of the currency, can maintain an action in the courts of this state to recover an assessment duly levied upon the shareholders of the bank. Two points are presented by the appellant: *First,*that the plaintiff is to be treated as a foreign receiver, and as such denied a standing in our courts; *second,*that he is not the real party in interest. As a subdivision of the first point, the appellant contends that exclusive jurisdiction' in this class' of actions is vested in the federal courts. The rule, however, is the other way. It was so held with regard to assignees in bankruptcy by the supreme court of the United States after full consideration. *Claflin*v. *Houseman,*93 U. S. 130. The conclusion of the court in that case was that the assignee might sue in the state courts to recover the assets of the bankrupt, so long as congress had conferred no exclusive jurisdiction upon the federal courts. The head-note gives the reason in compendious form, as follows: “The statutes of the United States are as much the law of the land in any state as are those of the state; and, although exclusive jurisdiction for their enforcement may be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the state courts, having competent jurisdiction in other respects, may be resorted to.”

The precise point with regard to receivers of national banks was decided in favor of the jurisdiction of the state courts in *Platt*v. *Crawford,*8 Abb. Pr. (N. S.) 308, and the right of such receivers to sue in the state courts was not even questioned in *Platt*v. *Beebe,*57 N. Y. 339. See, also, *Bank of Bethel*v. *Pahquioque Bank,*14 Wall. 383, and *Brinckerhoff*v. *Bostwick,*88 N. Y. 61. Upon the main question we are of *opinion—First,*that, even if the plaintiff be treated as a foreign receiver, he should be permitted to proceed in our courts, there being no question here of local rights or interests; but, *second,*he is not to be treated as a foreign receiver in the ordinary acceptation of that term. The discussions on this head with which the books abound are predicated mainly of the demands of local creditors, to subject to their claims assets of the debtor within the jurisdiction, to the exclusion of foreign assignees in bankruptcy. The contention in favor of such local creditors (and also in favor, of *bona fide*purchasers) was that the foreign statutes had no extraterritorial force, and could only bind or pass the title to property within the territorial limits of such foreign country; and also, as underlying and in aid of the question of right, that the foreign assignee had no standing in our courts except by comity, which would not be extended to them to the prejudice of local creditors. It does not seem, however, to have been generally doubted that such comity would be extended whenever it did not conflict with or prejudice the rights of.our own citizens. Such, at all events, is now the settled law of this state. *In re Waite,*99 N. Y. 433; 2 N. E. Rep. 440, see specially pages 446-448, 2 N. E. Rep. 447-449; *Barclay*v. *Mining Co.,*6 Lans. 25.

But, further, the plaintiff is not to be.treated, as already observed, as a foreign receiver, in its strict sense. Technically, it is true, he is the receiver of *391a foreign corporation. It will be observed, however, that he is-not a receiver appointed by the courts of a foreign country, or even of a sister state, but by an officer of the United States, under authority derived from national legislation. Such cases, therefore, as *Booth*v. *Clark,*17 How. 322, are inapplicable. A receiver appointed under the laws of the United States has surely no need to appeal, anywhere within the nation, to the doctrine of comity. As was said by Mr. Justice Bradley in *Claflin*v. *Houseman, supra:*“The United States is not a foreign sovereignty, as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. * * * The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. The disposition to regard the laws of the United States as emanating from a foreign jurisdiction is founded on erroneous views of the nature and relations of the state and federal governments. ” ' It is also well settled that the determination of the comptroller of the currency to appoint a receiver, and his action in levying the assessment, are conclusive upon debtors and shareholders. *Platt*v. *Crawford, supra; Cadle*v. *Baker,*20 Wall. 650; *Casey*v. *Galli,*94 U. S. 673; *Kennedy*v. *Gibson,*8 Wall. 498.

The remaining question is whether the plaintiff is the proper person to sue. This question has also been settled adversely to the appellant. *Stanton*v. *Wilkeson,*8 Ben. 359; *Bank*v. *Kennedy,*17 Wall. 21; *Kennedy*v. *Gibson, supra; Bank of Bethel*v. *Pahquioque Bank,*14 Wall. 383; *Platt*v. *Crawford, supra.*Under section 449 of the Code, a person expressly authorized by statute to sue is excepted from the provision that the action must be prosecuted in the name of the real party in interest. Here the receiver is so expressly authorized. See cases above. See, too, Rev. St. U. S. §§ 5151, 5234; also Act Cong. Feb. 14, 1880, § 1. And this is entirely reasonable; for the bank is not the real party in interest, but its creditors, and whatever the receiver collects he must pay over to the treasurer of the United States for the benefit of these creditors. The interlocutory judgment appealed from should therefore be affirmed, with costs. All concur.