Lewis v. . the Park Bank

The ground of demurrer to the complaint was, that it did not state facts sufficient to constitute a cause of action. Chapter 477 of the Laws of 1860 made it the duty of the city chamberlain, who is, by virtue of his office, county treasurer, to deposit all moneys of the city or county of which he was custodian in a bank to be designated by him, as provided in the act. Upon such deposit being made, the relation of debtor and creditor was created, either between the city and county and the bank, or the officer and the bank, as there was no law requiring such moneys to be specially deposited and kept by the bank separate and apart from its other funds. For the purposes of this action it is immaterial whether the city and county, or the officer, is to be regarded as the creditor of the bank. When Devlin succeeded Platt as chamberlain, he had the right to designate the banks in which the money should be deposited. Pursuant to this power he designated the Broadway Bank. The defendant *Page 466 was at the time debtor for about four millions of dollars, for money previously deposited with it by Platt while holding the office of chamberlain. Devlin requested the defendant to pay or deliver the money, so deposited with it by Platt, to the Broadway Bank to his credit, which it refused to do, but retained the same for about fifty-three days, when, upon the award of a peremptory mandamus by the Supreme Court, requiring it to make such payment or delivery to the Broadway Bank, the same was paid in pursuance thereof. The complaint further shows that the Broadway Bank has duly assigned to the plaintiff all its claims for damages against the defendant, sustained by reason of its failure to deliver to the bank the money in question, when required by Devlin. No question is made, by the respondent's counsel, but that any claim to damages which the Broadway Bank had against the defendant was assignable, nor but that the plaintiff, as its assignee, can maintain the action to recover such damages, provided the Broadway Bank could have recovered. The question simply is, whether the Broadway Bank could have recovered anything of the defendant as damages; and, if so, what it could have recovered? To entitle the bank to recover, it must appear that its rights had been violated by the defendant. What right of the bank has been violated? It is argued that, upon its designation as a depository by the chamberlain, it became entitled to receive and retain the money of the city and county, until the same was drawn from it pursuant to law; that the bank would have acquired large gains from this possession of the money. This is all true. But what money did it thus become entitled to receive and retain? The act of 1860, cited above, furnishes the answer. It was all money of the city and county of which the chamberlain was, by virtue of his office, custodian. Devlin was not custodian of the money deposited by his predecessor with the defendant. Although, in a popular sense, it might be considered that the money so deposited with the defendant was money of which the chamberlain was custodian, yet, in a legal sense, it was not so. The money, *Page 467 when deposited, was no longer the money of the city, but at once became the money of the defendant; was by it rightfully used as its own money; it becoming debtor therefor, the same as to any other of its depositors. Upon its failure to pay, as required by law, a like remedy by action could have been had for its recovery, together with interest as damages. The remedy resorted to was a mandamus, as appears by the complaint. The defendant is not estopped by any determination in that proceeding, as the parties were not the same in that as in the present action, the Broadway Bank, the plaintiff's assignor, not having been a party. The Broadway Bank had no more claim to recover damages of the defendant for its refusal to pay over the money in question, thus preventing its deposit with it, than to recover against any tax-payer or debtor of the city who refused to pay the claim against him, and thus prevented the amount being deposited. The judgment of the General Term, affirming that of the Special Term, sustaining the demurrer, must be affirmed.