Opinion
May, 1936.
Order denying application of the petitioner, as Superintendent of Banks of the State of New York, for a peremptory mandamus order to compel the respondent, John N. Harman, clerk of the county of Kings, to file without fee a transcript of a judgment entered in favor of The Bank of United States in liquidation upon a note discounted by it prior to its closing, pursuant to section 71 Banking of the Banking Law, reversed on the law and not in the exercise of discretion, without costs, and motion granted, without costs. The Banking Law (§ 71) provides that in the course of liquidation the Superintendent "may, in the name of the delinquent corporation or private banker * * *, prosecute and defend any and all actions and legal proceedings." Then follows a provision exempting the Superintendent from the payment of any fees "for filing or recording any paper or instrument executed in pursuance of any power conferred on him by this section." We are of opinion that while a transcript of a judgment is not executed by the Superintendent, it is a document issued "in pursuance of" the prosecution of the action by the Superintendent, and as such should be accepted by the respondent, clerk of the county of Kings, without the payment of a filing fee. ( Matter of Bank of United States [ Egbert v. Marinelli], 243 App. Div. 690; and see Van Schaick v. Marinelli, Id. 7.) Lazansky, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.