The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-11-10
The Bowery Bank-AlIeged COllusive Appoint-
ment OF a Receiver.
SUPREME COURT-sPECIAL TERM.
pafora Hon IudUa RnacavaIt

Before Hon. Judge Roosevelt
Nov 9-In the matter Of the Bowery Bank, on the Peti
tion of A. H. Nicolay-The petitioner Mr.. Nicolay, is
creditor of the Bowery Bank a certified check for
81 $780, dated October 1857 He complains in that charac
ter of what he denomnaes the cousve appointment Of
one Of the officers of the bank as receiver of
its assets 10 wind up its business, and asks that
the orders which were made for that purpose
at the instance of Mr.. Moody Cummings, another
and friendly creditor Of the bank may be vacated and
the appointment under them set aside Mr.. Cummings
suit it appears, commenced the 10th of October
on a check for $3.50, which, that day had been
protested for The order TO show
also made the 10th, and returnabe at half
past O'Clock the day. when the counsel of the
bank appearing but making no opposition, the institution
was formally declared nsolvent the injunction against
continued and receiver appointed with directions
lie the assets and distribute their proceeds among the
creditors equally and rateably according to law" 1t will
thus that the demand presented the upon
instituted the trial had the judgment rendered and the
execuonin effect issued and completed all on and the
day The proceeding therefore, although it may
have been perfectly proper was substantially voluntary
assignment made by the bank ITSELF for the equal benefit
Of all the creditors according to their respective debts 7"
And the question is, is such an assignment by bank,
which, if the petitioners allegations are well
founded, :" was and Is solvent and entirely able
TO pay Its debts, IN law valid proceed
ingY The statute in relation 10 moneyed corporations,
q r. s. 1917 provides that conveyance, assignment
transfer any judgment suffered by any such corpc-
ration when insovent in contemplation of insolvency
with the intent of giving preference any particular
creditor other creditors Of the company shall be valid
in law such provision seems to carry with it, by neccs
sary implication, admission that assignment judg
made suffered, without intent Of giving prefer
ences and Of course still more if with the express intent
of insurng equality, is proper and legal act 1t may be
mat the selecuoh OF one OF us own oihcers
receiver njudicous, but it certainly not
tons e r. S. 467 expressly provides that any Of the
directors trustees or other officers any of the stock
holders, may be appointed receivers" We have the
sanction therefore, OF the Legislature for the principle Of
such selection. ANY creditor nevertheless upon good
shown may object either before after the APP
pontment, and may designate a more suitable person Of
his nomination take the place of the nominee the
bank. Mr. Ncoay at present makes no such application
II understood however that another creditor has done
and that OF my colleagues has already made the de-
sired change by substituting Mr. Stewart for Mr.. Brad
ford. II is suggested that the constitution of the
State and the act Of lSig passed TO give effect
quremerts have superseded the previous legislation
the subject The constitution declares that the stockhold
Of banks Of issue shall be individually responsible To
the amount OF their respective shares; and
the Of lsI9 declares that the liability so
created shall be enforced therein provided, . and
other manner That manner Is either by issuing
execution and showing that the property of the
bank is Of such character that execution although
issued be satisfied of by waiting ten days
after demand refusal and then applying for dstri.
button Of the assets by receiver, and apportonment
OF the deficiency among the stockholders the report
a referee. Mr.. Cummings II Is said complied with mel.
ther Of these conditonshc neither obtained
nor waited the ten days ready answer to this objec-
ton Is found in the well settled principle that
a party in whose favor conditions prescribed may
waive their enforcement The bank did so; and the
order on that point, no fraud being suggested Is
cdd. II determined the institution 10 be insolvent Mr.
Nicoay, II Is true, was not party TO the proceeding
but the statute did not require that he should be- "Any
creditor having demand exceeding hundred dollars
authorised 10 make the application and obtain the
order. No nstce required, except 10 the bank II
the statute in this respect be, IL clearly defective
the Court has power to supply the omission For
Of notice To all the creditors an improper person
may sometimes doubt be appointed receiver The evil
however, only be temporary. Any person having
interest may Immediately apply for change and for
immediate injunction on his acts and such motions may
be repeated often occasions for them may arise
Mr. Ncoay, therefore, Is not prejudced and If II be true,
he alleges that the bank is solvent much the better
will II be for his ultimate payment II may, neverthe-
less, under the circumstances, II he desires be proper
To direct reference to inquire into the of the APP
pontmcn Of the cashier distinguished from other per
sons ha being the act rather Of the parties than OF the
CourD and OF tho subsequent substitution, pending this
proceeding Of the Secretary OF the Trust Company In his
stead Should the petitioners counsel consider special
order necessary, he will prepare draft and submit ION
nOteal for Epttlcmput.