205 A.D. 543, Mechanics & Metals Nat. Bank of City of New York v. Banque Industrielle De Chine

Citation:205 A.D. 543
Party Name:MECHANICS AND METALS NATIONAL BANK OF THE CITY OF NEW YORK and Another, Respondents, v. BANQUE INDUSTRIELLE DE CHINE and Another, Appellants.
Case Date:May 18, 1923
Court:New York Supreme Court Appelate Division, First Department
 
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Page 543

205 A.D. 543

MECHANICS AND METALS NATIONAL BANK OF THE CITY OF NEW YORK and Another, Respondents,

v.

BANQUE INDUSTRIELLE DE CHINE and Another, Appellants.

Supreme Court of New York, First Department.

May 18, 1923

APPEAL by the defendants, Banque Industrielle de Chine and another, 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 31st day of August, 1922, as resettled by an order made on the 25th day of October, 1922, denying defendants' motion for judgment dismissing the amended complaint, made on the grounds that it appears on the face thereof that said complaint does not state facts sufficient to constitute a cause of action and that the court has not jurisdiction of the subject of the action.

COUNSEL

John J. Curtin, for the appellants.

Frank M. Patterson of counsel [M. Mackenzie with him on the brief], for the respondent.

MCAVOY, J.:

The plaintiff here in a prior action procured an attachment against the Banco Espanol de la Isla de Cuba, a foreign banking corporation, on the ground that it was such a foreign corporation.

Page 544

The sheriff under this warrant levied upon an indebtedness due to that attachment debtor from the Banque Industrielle de Chine. This bank was doing business pursuant to a license issued by the State, and maintained an office in New York under such license. The defendant Superintendent of Banks, prior to the issuance of the warrant of attachment, had taken over in liquidation proceedings the management of the Banque Industrielle. The sheriff levied upon this indebtedness of the Banque Industrielle to the attachment debtor by delivering a copy of the warrant to the Deputy Superintendent of Banks who was in charge of the liquidation, with the usual notice under the former Code of Civil Procedure. The certificate of the Superintendent through his deputy states that the defendant Banque Industrielle was indebted to the attachment debtor in the sum of $7,308.42. The summons was served by publication in the former action, and the plaintiff bank here recovered in that action a judgment against the Banco Espanol for the sum of $12,378.57. Execution on this judgment was issued and thereafter returned unsatisfied. Upon the Superintendent of Banks declining to pay the sheriff the amount of the indebtedness aforesaid, leave was given by the...

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