That provision applies to money brought into court as provided by the Code of Civil Procedure, now transferred to sections 133 to 137 of the Civil Practice Act, and to sections 44-c and subdivision 8 of section 4 of the State Finance Law (Cons. Laws, ch. 56) and deposited as permitted by subdivision 6 of section 185 and subdivision 5 of section 188 of the Banking Law. In the case of Henkel v. Carnegie Trust Co. ( 213 N.Y. 185) this court definitely decided both propositions contrary to the respondent's contentions. The opinion in that case dealt with similar provisions of the Banking Law as it existed prior to the revision of 1914 (Laws of 1914, ch. 369), and the enactment of the Civil Practice Act.
Certain decisions in the state courts wherein it appears that state statutes gave priority to deposits by fiduciary are not in point. Henkel v. Carnegie Trust Co., 213 N.Y. 185, 107 N.E. 346. In Smith v. Fuller, 86 Ohio St. 57, 99 N.E. 214, L.R.A. 1916C, 6, Ann. Cas. 1913d 387, it was held that the trustee had no right to make a general deposit, and that the presumption was a deposit made by him was a special deposit.
This situation alone does not create a preferred account. Commercial Bank v. Armstrong, 148 U.S. 50, 13 S.Ct. 533, 37 L.Ed. 363; Minard v. Watts (C.C.) 186 F. 245; Henkel v. Carnegie Trust Co., 213 N.Y. 185, 107 N.E. 346; Woodward's Petition, 307 Pa. 485, 161 A. 738; McDonald v. Fulton, 125 Ohio St. 507, 182 N.E. 504, 83 A.L.R. 1107; Andrew v. Bank, 208 Iowa, 1248, 224 N.W. 499 (certiorari denied 281 U.S. 725, 50 S.Ct. 240, 74 L.Ed. 1142); Surprise v. First Trust & Sav. Bank (Ind.) 180 N.E. 926; Montana-Wyoming Ass'n v. Commercial Nat. Bank, 80 Mont. 164, 259 P. 1060; Re Commercial & Sav. Bank (S.D.) 236 N.W. 271; 7 C.J. 633. While the question of jurisdiction has not been raised, attention is directed to two comparatively recent decisions of the Circuit Court of Appeals of this circuit, Mullendore v. American Surety Co., 27 F. (2d) 572 (certiorari denied 278 U.S. 653, 49 S.Ct. 178, 73 L.Ed. 563), and Merryweather v. United States, 12 F. (2d) 407.
When the Legislature granted priority of payment for debts of a trust company as depositary for moneys paid into court, it used those words in the same sense in which they were used in chapter 8, title 3, sections 743 to 754, of the Code of Civil Procedure: "Payment of money into court, and care and disposition thereof." ( Henkel v. Carnegie Trust Co., 213 N.Y. 185.) These sections of the Code provided that where moneys paid into court are delivered to an officer other than the County Treasurer, he must pay it to the County Treasurer, or in the city of New York, to the City Chamberlain, within two days after he receives it.
"Moneys held by a receiver are in a sense in court, for they are held by the court's officer subject to its control, but the statute limits the preference to payments brought into court under prescribed conditions." ( Henkel v. Carnegie Trust Co., 213 N.Y. 185, 193.) There the court was considering statutory preferences upon the liquidation of a bank under the Banking Law, and it held that a receiver in bankruptcy was not entitled to a preference, for the moneys collected by the receiver and deposited in the bank are not moneys "paid into court" within the meaning of the statute and the bank does not hold such moneys either as a trustee or "depositary."
" These general expressions detached from their context do not reveal the purpose of the statute as a whole. Thus in Henkel v. Carnegie Trust Co. ( 213 N.Y. 185, 192) this court, speaking through Judge CARDOZO, made reference to the general provision of section 190 of the Banking Law and said: "Plainly this provision was not intended to control the judgment of foreign tribunals. The depositaries in view must have been those appointed by the courts of this State.
Motions for re-argument denied, with ten dollars costs. (See 213 N.Y. 185.)
A deposit subject to the order of the court is still an ordinary deposit creating a relationship of debtor and creditor ( Matter of Holden, 264 N.Y. 215). Though such funds are in a sense constructively in the possession of the court, they are not funds that have been paid into court ( Henkel v. Carnegie Trust Co., 213 N.Y. 185). As far as the depositary is concerned, they stand on no different basis than that of other deposits ( Emigrant Ind. Sav. Bank v. Scott's Bridge Realty Co., 264 N.Y. 1).
In such case there can be no preference. ( Henkel v. Carnegie Trust Co., 213 N.Y. 185; Matter of Egan, 258 id. 334; Matter of Bank of United States, 261 id. 645.)
We are of opinion that the claimant was not entitled to such priority for the reasons that the Times Square Trust Company was not a "depositary" of funds within the meaning of subdivision 8. It has been consistently held by the Court of Appeals that moneys paid into court within the meaning of section 188 Banking of the Banking Law are only such moneys as are paid pursuant to the provisions of sections 133 to 137 of the Civil Practice Act and to section 44-c and subdivision 8 of section 4 State Fin. of the State Finance Law, and deposited as permitted by subdivision 6 of section 185 and sub-division 5 of section 188 Banking of the Banking Law. ( Henkel v. Carnegie Trust Company, 213 N.Y. 185; Matter of Egan, 258 id. 334.) (See Matter of Bank of United States [ Claim of Moore], 236 App. Div. 826; affd., 261 N.Y. 645.)