Lowndes v. City Nat. Bank

• Court: Connecticut Supreme Court
• Writing for the Court: THAYER, J.
• Citation: Lowndes v. City Nat. Bank, 66 A. 514, 79 Conn. 693 (Conn. 1907)
• Decision Date: 01 May 1907
• Parties: LOWNDES et al. v. CITY NAT. BANK.

66 A. 514

79 Conn. 693

LOWNDES et al.

v. CITY NAT. BANK.

Supreme Court of Errors of Connecticut.

May 1, 1907.

Appeal from Superior Court, Fairfield County; Milton A. Shumway, Judge.

Action by Abbie S. Lowndes and another against the City National Bank; the Ætna Indemnity Company being cited in as codefendant. From orders refusing to cite the company in as coplaintiff and sustaining a demurrer to the motion asking that it be cited in as codefendant, and from a judgment for the company, defendant appeals. No error.

Civil action by the administrators of the estate of Theodore S. Lowndes, deceased, to recover a balance of $58,000 of the moneys of the estate deposited in the defendant's bank. The defendant filed a motion that the plaintiffs be ordered to cite in the Ætna Indemnity Company as a coplaintiff. This motion was denied by the court, and the defendant then filed a motion that the Ætna Indemnity Company be ordered to prosecute the action in its own name or be cited in as a codefendant, It was cited in as codefendant and filed a demurrer to the motion, which was sustained by the court, and judgment was rendered in its favor for costs. The defendant appealed to this court, assigning these rulings as error. The facts sufficiently appear in the opinion.

John H. Light and William F. Tammany, for appellant. James H. Webb, for appellee Ætna Indemnity Company.

THAYER, J. (after stating the facts). This action was brought to recover a balance of moneys and funds of the estate of Theodore S. Lowndes, deceased, deposited in the defendant's bank by one Layton, who was the predecessor of the plaintiffs as administrator of the estate, and was also cashier of the defendant. The motions state that this balance was misappropriated by Layton, and the complaint shows an attempt on his part, with the knowledge and consent of the defendant, to appropriate it to the purpose of taking up worthless and dishonored checks, notes, and other securities of various persons, which the defendant had paid and was then carrying as a part of its cash assets, and for which the estate was in no manner liable or obligated, and received no benefit. Layton was removed as administrator, and the plaintiffs appointed in his place. They demanded said balance of the defendant, and it refused to pay the same or honor their checks drawn therefor. Layton had given an ample probate bond, with the Ætna Indemnity Company as surety, for his faithful discharge of the duties of administrator. The surety, upon demand by the plaintiffs, paid them the amount of said balance, $58,000, and took from them an assignment of all their rights and claims against the defendant. It thereupon instituted this suit in the name of the plaintiffs, and his prosecuting it at its own expense and for its sole benefit. Layton, as cashier, gave the defendant a bond of $10,000, with the Ætna Indemnity Company as surety, for his faithful performance of his duties as cashier. He was unfaithful in the performance of those duties, whereby the defendant lost upwards of $10,000, and has a claim for that amount against the surety. After this action was brought the defendant requested the Ætna Indemnity Company to maintain the action in its own name, and it refused. It thus appears...