Opinion
November Term, 1899.
George Coggill, for the appellant.
Anderson Price, for the respondent.
The application here differs from that made in Pursley v. Rodgers ( ante, p. 139) in that it is in terms made under section 3268 of the Code of Civil Procedure, and, consequently, security for costs is claimed as matter of right because of the plaintiff's non-residence. The legal status of the plaintiff here also differs from that of the plaintiff in the case referred to. The present plaintiff is a non-resident of this State, and the National bank of which he is receiver is a foreign corporation within the definition of section 3343, subdivision 18, of the Code. It is created by or under the laws of the United States, but it is not located within the State. Then, too, the action is not brought by the receiver in any of the representative capacities defined in the provisions of the Code with respect to security for costs. It is, therefore, within the contemplation of these provisions brought by him individually. He was appointed receiver of this bank by the Comptroller of the Currency under power conferred by the Federal statute. This statute did not bring him within section 3271 of the Code. It did not make him an official assignee, nor the trustee of an express trust nor a person expressly authorized by statute to sue. He was authorized to sue — not expressly, however, but as a fair implication from the authority to collect debts due to the bank. And the Supreme Court of the United States has held that he was so impliedly authorized to sue either in his own name or — where the common-law forms of pleading still prevail — in the name of the bank to his own use. ( Kennedy v. Gibson, 8 Wall. [U.S.] 498; Bank v. Kennedy, 17 id. 19; Thomp. Corp. § 7280.) In this State it has been held that where permission to bring suits in the name of the president of banking associations was given by statute, such an association may sue in its corporate name as well as in the name of its president. ( Leonardsville Bank v. Willard, 25 N.Y. 574.) As the plaintiff — suing in no representative capacity defined in section 3271 of the Code — is a non-resident, and the bank for which he sues is a foreign corporation, and as none of the assets of the bank are within the jurisdiction or control of the courts of this State, the case is clearly brought within both the spirit and the letter of section 3268 of the Code.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred; VAN BRUNT, P.J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.