Bieringer-Hanauer Co. v. Cosmopolitan Trust Co.

• Decision Date: 28 November 1923
• Citation: 141 N.E. 566,247 Mass. 73
• Parties: BIERINGER-HANAUER CO. v. COSMOPOLITAN TRUST CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 73

141 N.E. 566

BIERINGER-HANAUER CO.

v.COSMOPOLITAN TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 28, 1923.

Report from Supreme Judicial Court, Suffolk County.

Bill in equity by the Bieringer-Hanauer Company against the Cosmopolitan Trust Company and Joseph C. Allen, Bank Commissioner, to enjoin the latter from prosecuting an action at law on a note and to compel him to credit on the note a deposit in the commercial department of the trust company, and for general relief. There was a decree dismissing the bill, and the case is reported for determination of the full court. Decree affirmed.

J. J. Gaffney, of Boston, for plaintiff.

S. M. Childs and E. O'Callaghan, both of Boston, for defendants.

DE COURCY, J.

When the bank commissioner, Joseph C. Allen, took possession of the Cosmopolitan Trust Company under the liquidation statute, he found among the assets of the savings department a note of the plaintiff for $9,000, dated September 7, 1920, and payable to the order of said trust company. When this note became due, on January 7, 1921, the plaintiff had on deposit in the commercialdepartment the sum of $6,206.82. It then tendered to the agent of the bank commissioner a check on the trust company for that balance, and also the sum of $2,793.18, the difference between the amount on deposit and the face of the note. The commissioner credited the $2,793.18 on the note, but refused to credit thereon the plaintiff's deposit in the commercial department, and he brought an action at law to recover the balance due. This bill in equity seeks to enjoin the commissioner from prosecuting the action at law, to compel him to credit on the note the said deposit, and for general relief.

[1][2][3] The note being an asset of the savings department, admittedly the plaintiff did not have a right to apply his deposit in the commercial department as a set-off. G. L. c. 172, § 62; Bachrach v. Commissioner of Banks, 239 Mass. 272, 131 N. E. 857;Bailey v. Commissioner of Banks, 244 Mass. 499, 138 N. E. 915. Nor did his tender of a check on an insolvent bank in liquidation constitute payment. Cosmopolitan Trust Co. v. Lyons, 244 Mass. 115, 138 N. E. 325;Cosmopolitan Trust Co. v. S. Vorenberg Co., 245 Mass. 317, 139 N. E. 482. His contention that the note should be transferred to the commercial department is based on the fact that the original note of February 5, 1920, for $9,500, was given as security for money borrowed from...