Amsden v. Traders National Bank , 182 A.D. 474 ( 1918 )

Kruse, P. J.:

A compulsory reference was directed which was resisted by the plaintiff, and the question is whether it has been made to- appear that the trial will require the examination of a long account.

The defendant bank credited, as directed by plaintiff’s husband, certain moneys paid to it by the husband. The account consists of several items, but the amounts are not in dispute. It is contended by the defendant that the moneys actually belonged to the husband and not to the wife and that the bank should be allowed to offset an indebtedness owing by the husband to the bank. The husband has since died and his estate is insolvent. Ordinarily the legal relation between a bank and its depositor is that of

debtor and creditor and the element of a trust is not involved. (Ætna National Bank v. Fourth National Bank, 46 N. Y. 86.) The husband had the right to give her the moneys and make her the creditor of the bank instead of himself. The bank seems to have so regarded the transaction as it credited the moneys to her account. Of course, if he was insolvent at that time, the gift (if it was a gift) may be fraudulent as to then existing creditors of the husband and the defendant bank be entitled equitably to set off its claim against the plaintiff’s claim, but I do not see how that can be done in the absence of the personal representatives of the deceased husband who are not parties to the action. (Lawrence v. Bank of the Republic, 35 N. Y. 320; Miller v. Hall, 70 id. 252; First Nat. Bank v. Shuler, 153 id. 171.) Even if an equitable setoff or counterclaim were available to the plaintiff it would not justify a compulsory reference. (Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236.) Not only -must it appear with reasonable certainty that the examination of a long account would be involved on the trial (Daly v. City of New York, 150 App. Div. 106), but it must directly arise in the action and not merely collaterally or incidentally. (Kings County Lighting Co. v. Woodbury, 177 App. Div. 451.)

The history and principles relating to compulsory references were very fully stated by the Court of Appeals in the Steck case and no further discussion here is necessary or useful. It is enough to state our conclusion: We think it has not been made to appear that the examination of a long account will be involved upon the trial within the rule governing compulsory references.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.