People v. Binghamton Trust Co.

Martin, J. The submission in this ease discloses that the judgment sought by the plaintiff is to restrain the defendant from carrying on business in the manner described in the submission, so far as it is in violation of the provisions of the banking law of this state; to adjudge that the defendant is exercising franchises not conferred, upon it bylaw; and for a penalty of $100 for carrying on business in violation of the provisions of section 283, e. 409, Laws 1882. The only actual relief which the plaintiff asks is (1) to restrain the defendant from continuing business in the manner mentioned; and (2) to recover the penalty provided for by section 283. The former cannot be awarded. Ho relief by injunction can be granted in a proceeding like this.1 Therefore, [183] so far as this proceeding is for an injunction, it should be dismissed. Steamship Co. v. Voorhis, 104 N. Y. 525, 11 N. E. Rep. 49; Patterson v. Association, (Super. N. Y) 11 N. Y. Supp. 636. 6This leaves for consideration the question whether the plaintiff is entitled.! to recover a penalty under the statute, which provides: “It shall not be lawful for any bank, banking association, or individual banker, firm, association,, corporation, person or persons, to advertise or put forth a sign as a savings, bank, or in any way to solicit or receive deposits as a savings bank; and any bank, banking association, or individual banker, firm, association, corporation, person or persons, which shall offend against these provisions, shall forfeit and pay, for every such offense, the sum of one hundred dollars for every day such offense shall be continued, to be sued for and recovered in the name of the people of this state, by the district attorneys of the several counties, in any court having cognizance thereof, for the use of the poor, chargeable to said county in which such offense shall be committed.” Laws 1882, c. 409, § 283. Whether or not such recovery can be had depends upon the construction to be given to this statute. If the purpose of the statute was to. prohibit any person, firm, corporation, or association from either soliciting- or receiving deposits in the manner in which they are usually solicited and received by savings banks, it would seem that the plaintiff would be entitled" to a judgment for the penalty demanded; for, when we consider the facte, stipulated as to the nature of the business transacted by the defendant, the-manner in which it was performed, the circulars the defendant distributed, and the advertisements it published, it is quite manifest that the defendant-solicited and received deposits in substantially the same manner as they are-solicited and received by savings banks. Thus, the question is presented whether the legislature intended to confer upon savings banks a monopoly of the class of business usually transacted by them, or whether the intent and purpose of the statute was to protect the-public against deception or imposition by prohibiting the receiving and soliciting deposits by any person, firm, corporation, or association under the claimr. or pretense of being a savings bank. We think the latter was the purpose-of the statute. This becomes quite obvious when we read all the provisions-of that section. The manifest purpose of the section was to render it unlawful to advertise, put forth a sign, solicit or receive deposits, claiming or pretending to be a savings bank. If such is the proper construction of the statute under consideration, and we think it is, it follows that the plaintiff is not, entitled to recover the penalty sought to be recovered in this action, as the-statement of facts is insufficient to justify us in holding that the defendant:, in any manner held itself out as a savings bank, or solicited or received deposits claiming or pretending to be such. These considerations lead us to the-conclusion that this action, so far as it is for an injunction to restrain the-defendant from carrying on its business in the manner mentioned, should be-dismissed, and, so far as it seeks to recover a penalty, judgment should be entered in favor of the defendant upon the merits, with costs. Judgment is? directed accordingly; the form of judgment, if not agreed upon, to be settled: before Martin, J. All concur. Footnotes [1] Code Civil Proc. § 1381, provides that an injunction shall not be granted in a controversy submitted on an agreed statement of facts, without process, under section 1279.