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ried beyond that given in act; an action will lie for money had and received. Pratt et al. v. Short, 79 N. Y. 437, 35 Am. Rep. 531; Pratt et al. v. Eaton, id. 449, reversing 18 Hun, 294; 84 N. Y. 190.

7. The principal attributes of a bank are the rights to issue negotiable notes, discount notes and receiver deposits. New York Trust and Loan Co. was authorized by special charter to buy or receive all kinds of property, real, personal or mixed, and to advance moneys on any property, real or personal. Held, that the act of discounting commercial paper for the purpose of raising money, and placing the proceeds to the credit and subject to the check of customers, constituted the business of banking, and was illegal, and that even if the charter authorized it, such authorization is in violation of section 4, article 8 of the constitution of this State (citing P. v. Utica Ins. Co., 15 Johns. 388-390, 8 Am. Dec. 243). N. Y. T. & L. Co. v. Helmer, 12 Hun, 42.

8. A contract for the loan of, as well as the security taken on loan made by corporation not authorized to make loans, is void. See note to section 301; 79 N. Y. 437, 35 Am. Rep. 531, and 77 id. 64; Beach v. Fulton Bk., 3 Wend. 583. But this section does not preclude individuals or corporations otherwise authorized from lending money on promissory notes by way of discount or otherwise. People v. Brewster, 4 Wend. 498.

9. The Restraining Acts prohibited corporations not expressly authorized from engaging in the business of banking. Corporations formed before the passage of these acts are not prohibited thereby, and may carry on banking business. The People v. The President, etc., 9 Wend. 351.

10. A foreign corporation conducting an illegal banking business in this State made a lawful loan on bond or mortgage. Held, that the only penalty incurred was that given by statute, and that so much of its business as was not in contravention of statute (including said loan), was valid. Bard v. Poole, 12 N. Y. 505. 11. Negotiable security of an association, which upon its face appears to be duly issued, is valid in the hands of a bona fide holder without notice, although issued in fact without authority and in violation of law. A contract made in this State by a foreign corporation is valid, unless prohibited by law. Stoney v. Am. Life Ins. Co., 11 Paige, 635.

12. Non-negotiable notes and drafts, which cannot be used and circulated as money, are not prohibited by statute, and may be issued by banks and banking associations, either as evidences of indebtedness to particular individuals, or for other legitimate purposes. Ontario Bk. v. Schermerhorn, 10 Paige, 110.

13. The legislature intended to prohibit the issuing of any bills or promissory notes by any individual or corporations as private bankers, and the prohibition becomes absolute and unqualified. People v. Brewster, 4 Wend. 500; see notes to section 299.

14. A foreign bank may keep an office within the State to redeem its notes or bills brought into the State in the ordinary course of business. DeGroot v. Van Duzer, 17 Wend. 170.

15. A foreign corporation, keeping an office in this State for receiving deposits and discounting notes, cannot recover on note or other security, or in action for money loaned. Bridge Co. v. Silk Co., 25 Wend. 648.

16. A Canada bank furnished parties in Buffalo their bills for doing a discount and exchange business, taking a valid mortgage from the mortgagor as security. Held, a violation of this statute, and that bank could not recover

on the mortgage, since the violation of this statute was a defense to mortgagor. DeWitt v. Brisbane, 16 N. Y. 508.

17. It is not necessary that they should have been capable of circulating as money; it is enough to constitute an offense against the statute that they should be issued to be loaned. The issuing of negotiable certificates of deposit for £1,000 each, payable at a distant day, in England, is not a violation of statute forbidding issue of certificates to circulate as money. But where such certificates are proved to have been issued to be loaned as money, it is a violation of the statute. Schermerhorn v. Tolman, 14 N. Y. 93.

18. A note discounted by a foreign bank at its place of business, given by a resident of this State, is valid, as is also a mortgage taken to secure the same. Although the note is discounted at a higher rate than allowed by the law of the State where bank is situated, if it does not exceed our rate, it does not constitute usury. Hackettstown National Bank v. Rea, 64 Barb. 175.

19. The right of banking was formerly a common-law right to be exercised by any one at pleasure. But the legislature thought proper by the Restraining Act of 1804, and which has since been re-enacted (1813, ch. 71), to take that right away from all persons not specially authorized by law. But the remedy against those violating statute is in court of law, for the statutory penalty, not in court of equity, and injunction will not lie. Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 375.

20. If an incorporated bank of another State lends money on mortgage in this State, it is not a violation of the statute. It only applies to operations done in State. 4 Johns. Ch. 373.

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§ 108. Restrictions as to foreign corporations. No foreign corporation, other than a national bank, shall keep any office for the purpose of receiving deposits or discounting notes or bills, or issuing any evidence of debt to be loaned or put in circulation as money within this state.

(Former section 88; R. S., 1578; L. 1882, ch. 409, § 304.) See General Corporation Law, § 15.

No bank in this

§ 109. Restrictions as to banks and their officers. state, or any officer or director thereof, shall open or keep an office of deposit or discount other than its principal place of business, except that any bank located in a city of over one million inhabitants, according to the last state or federal enumeration, and whose certificate of incorporation shall so provide, may open and keep one or more branch offices in such city for the receipt and payment of deposits and for making loans and discounts to the customers of such branch offices only; provided, however, that no bank shall open a branch office without first having obtained the written approval of the superintendent of banks to the opening of such branch office, which written

approval may be given or withheld in his discretion, and shall not be given by him until he has ascertained to his satisfaction that the public convenience and advantage will be promoted by the opening of such branch office and, provided further, that no bank, or any officer or director thereof, shall open or maintain a branch office, unless the capital of such bank actually paid in cash shall exceed the amount required by section sixty of this chapter by the sum of one hundred thousand dollars for each branch office hereafter opened and the sum of fifty thousand dollars for each branch office heretofore opened and hereafter maintained. Every bank and every such officer or director violating the provisions of this section shall forfeit to the people of the state the sum of one thousand dollars for every week during which any branch office hereafter opened shall be maintained without such written approval.

(Former section 89; R. S., 1578; L. 1882, ch. 409, § 305; L. 1898, ch. 410; L. 1908, ch. 156.)

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110. Bills payable otherwise than in money prohibited. No person shall give, pay or receive in payment, or in any way circulate, or attempt to circulate, any bank bill, or any promissory note, bill, check, draft or other evidence of debt, issued by any bank or individual banker, which shall be made payable otherwise than in lawful money of the United States.

Every person violating this provision shall forfeit to the people. of the state the face amount or value of such bill, note or other evidence of debt so given, paid, received, circulated or offered, to any person who will sue for the same within sixty days after the commission of the offense.

(Former section 90; R. S., 1579; L. 1882, ch. 409, §§ 308, 309.)

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§ 111. Certain bills declared to be promissory notes. All bills, notes or other instruments which shall be issued by any bank or individual banker purporting to be receivable in payment of debts due to it, shall be deemed and taken to be promissory notes for the payment on demand of the sum or value expressed in such instrument, and such sum shall be recoverable by the holder or bearer of such instrument, in like manner as if the same were a promissory

note.

(Former section 91; R. S., 1579.)

§ 112. Use of sign indicating bank by unauthorized persons prohibited. No person engaged in the business of banking in this state, not subject to the supervision of the superintendent and not required to report to him by the provisions of this chapter, shall make use of any office sign at the place where such business is transacted, having thereon any artificial or corporate name, or other words indicating that such place or office is the place or office of a bank; nor shall such person or persons make use of or circulate any letter-heads, billheads, blank notes, blank receipts, certificates, circulars, or any written or printed or partly written and partly printed paper whatever, having thereon any artificial or corporate name, or other word or words, indicating that such business is the business of a bank.

Every person violating this provision shall forfeit the sum of one thousand dollars. But this section shall not apply to any person or persons engaged in the business of banking prior to October first, eighteen hundred and ninety-two.

(Former section 92; R. S., 1579; L. 1882, ch. 409, § 311; L. 1885, ch. 329.) See Penal Law, § 302.

§ 113. Lost bank certificate; application to court for order requiring payment. — Where a deposit of money has been made in any bank doing business in the state and a certificate of deposit has been issued therefor, and such certificate has been lost or destroyed, the person to whom it was issued, his or her executors or administrators, or in case of assignment the assignee thereof or his or her executor or administrator, may apply to the supreme court of this state at a special term thereof appointed to be held in the judicial district where said bank is situated, by petition, duly verified by the petitioner, in the same manner as a complaint in a civil action in the supreme court is verified, for an order requiring the payment of the money due on such certificate, or if a bond or undertaking has been given to secure the payment of such a certificate and the same has been paid to the person to whom it was issued, his or her executors, administrators or assigns, the obligors thereon, or any one of them, or the executors, administrators or assigns of such obligors, or the persons or corporation executing such bond or undertaking, or any one of them, may apply to said court on petition verified in the same said manner for an order declaring such certificate null and

void and for the release, discharge and satisfaction of any such bond or undertaking and of the obligors thereon.

(L. 1899, ch. 451, § 1; L. 1901, ch. 171, § 1.)

As to the questioned constitutionality of this and following sections, see Matter of Ellard, 62 Misc. 374; Matter of Cook, 86 App. Div. 586.

§ 114. Petition; service of. Such petition shall set forth the date of such certificate, the amount for which it was issued, the name of the bank issuing it, and the place where said bank is located, the name of the person to whom it was issued, and if assigned, the name of the assignee, and if a bond or undertaking has been given to procure the payment of such certificate and the release, discharge and satisfaction thereof is sought, said petition in addition shall also state the date of the same, the time when, by whom and to whom given and the names of the obligors thereon.

A copy of such petition shall be served on said bank in the same manner as a summons in the supreme court is served on a corporation, at least eight days before the time specified therein for a hearing before the court, and if the release, discharge and satisfaction of a bond or undertaking given to procure the payment of such a certificate is sought, then such petition shall be also served at the same time and in the same manner on the obligors thereof and the persons giving the same, their executors, administrators or assigns, other than the party making said petition.

(L. 1899, ch. 451, §§ 2, 3; L. 1901, ch. 171, §§ 2, 3.)

§ 115. Bank to furnish information. The bank issuing such certificate shall, upon application of the person who made the deposit, or his executors, administrators or assigns, furnish to such applicant the date and number of the certificate and the amount for which it was issued, and shall upon like application furnish to any obligor, on any bond or undertaking given to procure the payment of such certificate, or his executors, administrators or assigns, like information.

(L. 1899, ch. 451, § 4; L. 1901, ch. 171, § 4.)

§ 116. Notice; order, and publishing. Upon due proof of the service of such petition on said bank, the court, if it shall be satisfied that the facts set forth in the petition are true, may make an order

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