Page:Federal Reporter, 1st Series, Volume 1.djvu/649

Lavin v. The Emigrant Industrial Savings Bank.

(Circuit Court, S. D. New York. April 1, 1880.)

Payment to Administrator—Letters Issued During Absence of Creditor from State—"Due Process of Law"—Estoppel. Payment to a foreign administrator upon the presentation of ancillary letters duly issued by a surrogate upon the proof of the original letters issued under a statute of the foreign state, providing that "if any person shall be absent from this state for the term of three years, without due proof of his being alive, administration may be granted upon such person's estate as if he were dead," will not avail as a defence to the subsequent demand of the creditor.

E. D. McCarthy, for plaintiff.

J. E. Devlin, for defendant.

Choate, J. In this case a jury trial has been waived. The plaintiff, an alien, sues to recover the sum of $400 deposited by him with the defendant, an incorporated savings bank doing business in New York city, with the accumulated interest. The answer admits the deposit by one John Lavin of $300 on the eighteenth day of July, 1865, and of $100 on the thirteenth day of January, 1866. It sets up as a defence that on the fourteenth day of February, 1877, one John M. Brennan made application to the surrogate of the city and county of New York for letters of administration upon the estate of the said John Lavin, and that thereupon the said surrogate decided upon such application that the said John Lavin was deceased and had died intestate, leaving assets within said city and county, and thereupon appointed John M. Brennan administrator, and issued to the said John M. Brennan letters of administration of the goods, etc., whereof the said Lavin died possessed in the state of New York; that thereafter, and while said decision of the surrogate was in full force and unreversed, said Brennan presented his said letters to the defendant and demanded, as administrator of John Lavin, the said amount deposited, with accrued interest, and the defendant thereupon paid the same to him.

The answer denies that it was the plaintiff who made these deposits, but his identity was fully established by the evi-