People ex rel. Williams v. Assessors of Albany.

value. It thus appears that as between the two banks, the shares of the former are assessed at the same valuation as those of the latter, whereas if the correct standard had been followed, the assessment of the shares of the former would have been fifty-nine per cent lower than that of those of the latter bank.

It also appears from the reports of the officers of The Mechanics and Farmers' Bank, annexed to the return, that the amount of surplus and undivided profits in the bank, which escapes taxation under the method of valuation adopted by the board of assessors, is over $750,000. The result is apparent that the amount of tax assessed against all the other taxable property included in the assessment roll must necessarily be increased. All of the tax payers, including the relators, may therefore be injured by the erroneous assessment made against the shareholders in the Mechanics and Farmers' Bank. In the language of GROVER, J., in the case of People ex rel. Marsh v. Delaney, 49 N. Y. 655 (opinion not reported), "the grievance does not consist in a violation of law, in consequence of which the assessment of the relators' property is larger than it should have been, but in a violation whereby the capital stock of the defendant's corporation has been assessed at a sum less than it should have been, thereby increasing the ratio of taxation upon the property of the relators to some extent, and also upon the property of every tax payer in the city."

We have endeavored to find some practical legal remedy to correct these serious irregularities. The relators ask to have their assessment reduced to forty-one per cent of the assessment upon a corresponding number of shares of the Mechanics and Farmers' Bank, or if that be held inadmissible, a reassessment on the shares of both banks, based upon their actual value. Both of the remedies proposed are as bad as the disease, and the adoption of either would necessarily result in a violation of the statute. We cannot redress one wrong by the perpetration of another, under the forms of law, equally flagrant and indefensible. It does not follow because the shares of a particular bank, severally representing a par value of $100, were actually worth in the market over $350, that all other bank stock in the ward except the relators' was also of the same value; and that the relators are therefore entitled to have their assessments reduced to the same proportionate valuation. In all the cases cited on the argument, where the court, on a certiorari, made an order reducing the assessment of the relator

People ex rel. Williams v. Assessors of Albany.

to a definite amount, the facts fully appeared in the return, so that upon a comparison of his assessment with all the others on the roll, according to the true standard of valuation, the precise extent of the injury could be ascertained. But in this case the return does not contain these essential facts, and we have no means of determining, even from annexed exhibits, the real value of the stock of any of the banks except the relators' and the one selected as the subject for their complaint. It is quite possible that the shares of stock thus selected and presented to the court are of much higher value than those of any other bank in the city, and indeed that the shares of all the other banks are of far less value than those of the relator's. However this may be, the relators should have procured a return, setting forth the real value of all the bank stock worth more than par in the city, or at least in the sixth ward, if they desired an order requiring the assessors to make a specific reduction of their assessment. The other alternative suggested by the relators, of directing a reassessment of the assessors upon the shares of both banks, on the basis of their actual value, is equally untenable. If any reassessment were ordered, it should include all the bank stock, worth more than par, in the ward if not in the city, and this relief we would readily grant if it could be made effectual. But an insuperable difficulty is presented, from the fact that none of the assessments against shareholders in the banks can now be increased, and a reassessment, therefore, upon the only feasible basis, according to the rate of valuation of the shares of the highest value appearing on the assessment roll, would require a readjustment of all the property on the roll, which, at this late day, is quite impracticable. Besides, it would involve the same violation of the statute under the sanction of the court, of which complaint is now made, as it would require a reassessment of all the taxable property at less than one-third of its real value. The writ of certiorari, in cases of this character, does not issue ex debito justitiæ, but, in the sound discretion of the court upon special cause shown, and when issued, will be superseded, if the remedy sought be inconsistent with the interests of public justice and convenience. People v. Supervisors of Allegany, 15 Wend. 198; People ex rel. Marsh v. Delaney, 49 N. Y. 655. We are constrained, in view of all the difficulties suggested, and the public embarrassments which would ensue from an interference at this time with the assessments, to supersede the writ, and the motion to quash must, therefore, be granted, without costs. Writ quashed.

Havens v. National City Bank of Brooklyn.

HAVENS V. NATIONAL CITY BANK OF BROOKLYN.

(6 Thompson & Cook, 346.)

National bank cannot be garnisheed.

A National bank holding funds belonging to a bankrupt estate as depositary of a bankrupt court cannot be garnisheed in proceeding supplementary to execution.

PRO

ROCEEDINGS supplementary to execution on a judgment recovered in an action by Haven against Dutcher, assignee in bankruptcy of the Central Bank of Brooklyn, upon an indebtedness of said bank. The defendant had money deposited with it, belonging to said Central Bank, but deposited to the credit of said Dutcher as assignee in bankruptcy.

The Special Term made an order requiring said National City Bank to pay over to the judgment-creditor the amount of his judgment out of the moneys deposited.

The bank appealed.

W. H. Hollis, for appellant.

E. L. Sanderson and John H. Bergen, for respondents.

BARNARD, P. J. The defendant, the National City Bank of Brooklyn, is not a corporation having property of the judgmentdebtor under section 294 of the Code.

It is a depositary of the Bankrupt Court of the United States for the Eastern District of New York. It has no power to pay out any of the funds so deposited except upon a warrant of the assignee in bankruptcy countersigned by the District Judge or by a Register in Bankruptcy of the district.

The fund is in the Bankrupt Court and is to be disposed of by order of that court. Bankrupt Law of 1867, § 27.

The Bankrupt Court has the sole jurisdiction over the bankrupt estate.

Order reversed, with $10 costs.

National Bank of Fairhaven v. The Phoenix Warehousing Company.

NATIONAL BANK OF FAIRHAVEN V. THE PHENIX WAREHOUSING

COMPANY.

(6 Hun, 71.)

National banks cannot maintain branch offices in New York.

A National bank located in another State cannot keep an office for discount and deposit in New York, and cannot maintain an action upon a note dis counted at such office.

One accustomed to deal with a National bank as such, and who so deals with it in respect to a promissory note, is estopped from denying the incorporation of the bank in an action on the note.*

A

CTION upon promissory notes made by the defendant and indorsed to the plaintiff, a National bank. The referee to whom the case was referred found that the bank was organized under the National Banking Act, and was located in Massachusetts, and that the notes were due and unpaid.

F. E. Dana, for appellant.

John Winslow, for respondent.

DAVIS, P. J. The plaintiff sufficiently proved its incorporation under the general banking laws of the United States by the production of the certificate of the Comptroller of the Currency. The point that a copy, and not the original certificate, was produced, was distinctly waived, and cannot now be urged. Besides, it appeared by the evidence in the case that the defendant was accustomed to deal with the plaintiff as a corporation, and did so deal in respect of the notes in suit. The defendant was thereby estopped from denying the incorporation of the plaintiff. Palmer v. Lawrence, 3 Sandf. 161; Steam Nav. Co. v. Weed, 17 Barb. 378; White v. Coventry, 29 id. 305; Sands v. Hill, 42 id. 651; White v. Ross, 15 Abb. Pr. 66. There was sufficient evidence to show the making of the notes by the defendant. Its incorporation was admitted by the answer. The signatures of the president and secre

*See Huffaker v. National Bank, ante, p. 504.

National Bank of Fairhaven v. The Phoenix Warehousing Company. tary to the notes in suit were proven. That was enough to show, prima facie, at least, that the notes were properly made on behalf of the corporation, and to devolve the burthen on the defendant to show that they were made without authority and outside of the business of the corporation. No attempt was made to do this.

The offer of the defendant to show failure of consideration of the notes, in whole or in part, was properly rejected. It was not accompanied with any offer to show that plaintiff was not a holder of the paper in good faith and for value in due course of business; and it already appeared that its notes had been discounted or taken in renewal of discounted paper, in due course of business. It was of no importance that, after the non-payment of the notes at maturity, the plaintiff had received collateral security from the indorser of the notes. That fact could not affect the plaintiff's right to enforce the notes still held by it as the principal indebtedness. There is nothing in the point that the referee allowed interest in the notes. The law awards interest, and the court or a referee may compute it without any other proof than what appears on the face of the notes.

This disposes of all the points of the appellant but one, and that seems to us altogether more serious.

The plaintiff was a banking corporation, organized under the laws of the United States, doing business in the State of Massachusetts. It was, therefore, a foreign corporation, and as such was subject to the restraining laws of this State whenever it attempted to do banking business within this State.

The defendant offered to show, that at the time of the discount of the original notes and of the discount of the notes in suit, plaintiff had an office in the city of New York for banking purposes, and that these notes were discounted at that office. "The proof of the offered fact would prima facie show an illegal discounting of the paper in this State, in direct violation of the statute, which prohibits all corporations, not authorized by the laws of this State, from keeping an office in this State for the purpose of discount or deposit (1 R. S. [2d ed.] 708, §§ 6, 7), and would have devolved upon the plaintiff the necessity of showing that it was authorized by law to keep such office and discount the notes in this State.

The authorities settle that there can be no recovery in the courts of this State upon paper thus discounted by a corporation acting