The Grocers' National Bank of the City of New York vs. Clark

The Grocers’ National Bank of the City of New York vs. Clark. A right of action to recover damages for the fraudulent misapplication or conversion of property by an officer or agent of a banking association, is assignable, and an action can be maintained by the assignee. Such a right of action is assignable when the wrong is committed against a banking association, equally as if the property of an individual was thus misapplied or converted. The attribute of assignability is not confined to rights of action belonging to natural persons; it extends with equal effect to those belonging to artificial persons. THIS was an action to recover damages for the fraudulent misapplication or conversion of property by an officer or agent of a banking association, the Grocers’ Bank, and for the arrest of the defendant. The Grocers’ Bank was a state institution, formed under the general banking law. After the commission of the acts complained of, the Grocers’ Bank was converted into the “ Grocers’ National Bank,” under the laws of the United States, and by operation of the act of the legislature, of March 9, 1865, “ enabling the banks of this state to become associations for the purpose of banking, under the laws of the United States,” {Laws of 1865, p. 171, § 6 ;) and without any assignment or transfer, all the assets, real and personal, of the Grocers’ Bank, were vested in, and became the property of the “ Grocers’ National Bank,” the plaintiff in this action. An order of arrest having been granted, under section 179, subdivision 2 of the Cade, the defendant moved to vacate the same. The motion was denied, at special term, and he appealed. Geo. W. Parsons, for the appellant. Wm. A. Coursen, for the respondent. [MAJORITY — By the Court, Clerke, J.] By the Court, Clerke, J. The only question, among those presented on this motion, of which I entertained any doubt, on the argument, is that relating to the assignability of the demand. [New York General Term, January 2, 1866. This is nothing more or less than an action to recover damages for the fraudulent misapplication or conversion of property by an officer or agent of a banking association. If the property of an individual were thus misapplied or converted, there would be no doubt that the right to recover damages against the wrongdoer would survive to his executors or administrators, (2 B. 8. 746, § 1, 5th ed. /) it would be assets in their hands. If he had assigned it, the claim would be recoverable by his assignee. In other words, it is assignable. Why, then, should not a claim for the same kind of wrong be equally assignable, and be equally deemed assets when the wrong is committed against a banking association. The attribute of assignability is not confined to rights of action belonging to natural persons; it extends with equal effect to those belonging to artificial persons. The right of action, then, in this case passed as assets to the plaintiffs from the Grocers’ Bank to the Grocers’ National Bank, by operation of the act of 1865.' (Laws of 1865, p. 171, § 6,) The order should be affirmed; but I think the ends of justice will be sufficiently answered by holding the defendant to bail in $20,000, &c. Ingraham, GlerTce and Geo. G. Barnard, justices.]