ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.
MR. JUSTICE HARLAN delivered the opinion of the court.
This action was commenced in the Supreme Court of New York by the Receiver of the Cooper Exchange Bank, a New York corporation, against the Citizens' Central National Bank of New York, a national bank corporation formed by the consolidation (Rev. Stat., §§ 5220 and 5221) of the Central National Bank of the city of New York with the National Citizens' Bank of the same city. The action was dismissed on demurrer to the complaint, and that judgment was affirmed in the Appellate Division. 116 App. Div. 404. But on Appeal to the highest court of New York the judgment was reversed, 190 N.Y. 417, and the cause was remitted to the Supreme Court of that State for judgment in accordance with the opinion of the former court.
That the defendant, the Citizens' National Bank of New York, by the consolidation referred to, acquired all the assets and became subject to the liabilities of the Central National Bank of that city;
That on and prior to January 4th, 1904, one Michael Samuels was indebted to the Central National Bank in the sum of $10,000;
That "at the instance and request of Samuels, trading under the name of Mikael Samuels & Co., and the Central National Bank of the City of new York," the Cooper Exchange Bank loaned and advanced to the former the sum of $12,000, Samuels executing his written obligation, dated January 4th,
, to return or repay the same on or before four months after date with interest, and at the same time the Central National Bank of the city of New York, under seal, executed a written guaranty for the payment of the debt, as follows: "For and in consideration of one dollar and other good and valuable considerations, the Central National Bank of the city of New York hereby guarantees to the Cooper Exchange Bank the payment at maturity of a loan of twelve thousand dollars, made this day to Mikael Samuels & Co. by the Cooper Exchange Bank;"
That previous to the obtaining of said loan of $12,000, Samuels "agreed with the said Central National Bank to pay to it the said sum of $10,000 of the said $12,000 so obtained, and the said loan was obtained by the said Mikael Samuels and was guaranteed by the said Central National Bank in order that the said Central National Bank might obtain the said sum of $10,000, which it did receive and which was owed to it by the said Samuels;"
That previous to the maturity of the loan, namely, on January 30th, 1904, only a few weeks after the loan was made, Samuels was adjudged a bankrupt; and,
That no part of said loan had ever been paid, except $1,000, which was paid April 7th, 1906.
The Court of Appeals of New York -- Cullen, C.J., delivering the opinion -- held and the counsel for the Cooper Exchange Bank conceded in that court, that no recovery could be had against the guaranteeing bank in excess of the amount actually received by it out of the $12,000 loaned, as above stated. 190 N.Y. 417. The case being remitted to the inferior state court, judgment was therefore rendered ...