Second Department, December, 1911. [Vol. 147. verdict, even though its appeal, which had been taken from the order denying its motion conditionally, had been unsuccessful. The defendant in that case had, by its appeal, refused to accept the advantage of the conditional order; it asserted the right, by its appeal, to have an unconditional order setting aside the verdict and granting a new trial. The defendant thus waived its right to any advantage from the order, and this court very properly refused, to reverse an order staying the proceeding, when to do so would operate to deprive the plaintiff of the right to accept the conditions of the order, where he had proceeded regularly in his application for a stay of proceedings. In disposing of the question this court said: "It will work no hardship to the defendants if the plaintiff retains his right to stipulate for a reduction until after the determination of the cross-appeals, while the defendants' contention that they may properly accept the obvious benefit of that part of the order which requires the plaintiff to stipulate, and at the same time prosecute an appeal from the remainder of the order, suggests an anomaly which is made more striking by their argument against the plaintiff's rights in the matter. We think the order was granted by the Special Term in the proper exercise of its discretion, and should not be disturbed." This was obviously a case depending upon its own peculiar circumstances, and cannot be regarded as an authority for the proposition that after a party has deliberately made an election and has permitted his time to expire without taking action, he can, after the appeals have been determined, be restored to the rights which he has waived. The order here appealed from merely refused to extend a privilege which had once been waived, and while it might be said that the defendant refused to abide by the order by appealing from the same, it appears that the time had expired before the defendant's appeal was taken; the defendant already had the right to enter an order setting aside the verdict, and the fact that it may have appealed from the order where no appeal was necessary, does not operate to give the plaintiff any new rights. The order appealed from should be affirmed. JENKS, P. J., THOMAS, CARR and RICH, JJ., concurred, Order affirmed, with ten dollars costs and disbursements. App. Div.] Second Department, December, 1911. In the Matter of the Examination of UNION BANK OF BROOKLYN. (Appeal No. 2.) GEORGE C. VAN TUYL, JR., Superintendent of Banks of the State of New York, Respondent; EDWARD M. GROUT, Appellant. Second Department, December 8, 1911. Banks-effect of possession taken by State Superintendent - corporate existence not terminated-State Superintendent of Banks, power to issue subpoena — apprehension of defaulting witness-constitutional law - Code Civil Procedure, section 855, not unconstitutional. The legal existence of an incorporated bank does not cease because it has transacted no business since the State Superintendent of Banks took possession of it as authorized by statute, where its assets have not been finally distributed, or its affairs finally liquidated, and it has not been finally dissolved or its charter annulled. Section 8 of the Banking Law providing for an inspection and examination of banks by the State Superintendent applies not only to banks which are transacting business, but also to banks of which the Superintendent has taken possession by reason of delinquencies. Although the State Superintendent of Banks has taken possession of an incorporated bank so that it is not transacting business, he may issue a subpœna requiring the president of the bank to appear and give evidence during the examination into its affairs. Where the president of such bank in possession of the State Superintendent refuses to obey the subpoena, a warrant requiring the sheriff to apprehend him and bring him before the State Superintendent at a day fixed for the hearing may issue. Section 855 of the Code of Civil Procedure authorizing the apprehension of a person who refuses to obey such subpoena, so that he may be brought before the officer before whom his attendance is required, is not unconstitutional by reason of the fact that it does not require notice to the person to be apprehended. This, because said section does not authorize the commitment of the defaulting witness to any place of confinement, or provide for any interference with his liberty other than the restraint necessary to compel him to attend. WOODWARD, J., dissented, with opinion, in which RICH, J., concurred in result. REARGUMENT of an appeal by Edward M. Grout from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of APP. DIV.-VOL. CXLVII. 38 Second Department, December, 1911. [Vol. 147. Kings on the 16th day of September, 1911, denying the appellant's motion to vacate a warrant theretofore issued to the sheriff of Kings county requiring him to produce the said appellant before the respondent at a hearing in the aboveentitled matter. Martin W. Littleton [Frank R. Greene and F. Sidney Williams with him on the brief], for the appellant. Wilber W. Chambers, Deputy Attorney-General [Thomas Carmody, Attorney-General, with him on the brief], for the respondent. BURR, J.: On and prior to April 5, 1910, a corporation known as the Union Bank of Brooklyn was transacting business in that borough. It was a moneyed corporation and within the statutory definition of a bank. (Banking Law [Consol. Laws, chap. 2; Laws of 1909, chap. 10], § 2.) Edward M. Grout was the president thereof. Upon that date the Superintendent of Banks took possession of its property and business, as provided in section 19 of the Banking Law. That he was authorized to and lawfully took possession of the same is not questioned. Since then it has transacted no business. Its assets have not yet been finally distributed or its affairs finally liquidated, nor has it been judicially dissolved or its charter annulled. It is still a bank (Lafayette Trust Co. v. Higginbotham, 136 App. Div. 747), although for the time being prohibited from transacting business as such. Following the nomenclature of the Banking Law, it may be termed a delinquent bank. On July 17, 1911, the Superintendent of Banks began an examination into the condition and management of said bank, and on the twenty-second of August a subpoena was issued under his hand and seal, requiring Mr. Grout to appear on the twentyfifth day of August and testify and give evidence upon such examination. Upon proof by affidavit of his failure to appear, on September sixteenth a justice of the Supreme Court of the State of New York issued a warrant to the sheriff of Kings county, requiring him to apprehend said Grout and bring him before the Superintendent of Banks on the eighteenth day of App. Div.] Second Department, December, 1911. September at the hearing fixed for that day. Thereupon a motion was made upon notice to the Superintendent of Banks at a Special Term of the Supreme Court to vacate and set aside said warrant. From an order denying such motion this appeal is taken. * * - The first question presented is one of authority to issue the subpoena. If no such authority exists, it follows that all proceedings to compel obedience to its provisions must fall. The Banking Law provides ($8) as follows: "Every corporation *** specified in section two of this chapter shall be subject to the inspection and supervision of the Superintendent of Banks. He shall, either personally or by some competent person or persons to be appointed by him, to be known as examiners, visit and examine every bank at least twice in each year. * * On every such examination inquiry shall be made as to the condition and resources of the corporation, the mode of conducting and managing its affairs, the action of its directors, the investment of its funds, the safety and prudence of its management, the security afforded to those by whom its engagements are held, and whether the requirements of its charter and of law have been complied with in the administration of its affairs, and as to such other matters as the Superintendent may prescribe. He shall have power in like manner to examine every corporation * specified in section two, whenever, in his judgment, its condition and management is such as to render an examination of its affairs necessary and expedient. * * Appellant contends that section 8 applies only to banks which are still transacting business, and not to delinquent banks. Upon the argument of this appeal much discussion was had as to the meaning of the word "liquidate," and whether upon the facts disclosed by the motion papers it will be possible for the Union Bank to resume business. Such discussion seems to us wholly irrelevant. The section either limits the power of the Superintendent to those banks of which he has not taken possession as provided in section 19 of the Banking Law, or it applies to all banks, delinquent or otherwise, so long as they have legal existence. The statute makes no distinction in express terms between active and Second Department, December, 1911. [Vol. 147. * * * delinquent corporations. It applies to them equally. Nor is the power of the Superintendent to conduct an examination limited to active banks by necessary implication arising from the declared purpose for which examinations should be held. The statute first provides for examinations of banks, to be held at least twice a year. Upon "such examination" the general scope of the inquiry is indicated. We regard these words of the statute as suggestive rather than exclusive. But if we assume for the sake of the argument that they limit the scope of such inquiry to the matters specified in the statute, and that the words "as to such other matters as the Superintendent may prescribe" under the rule of ejusdem generis are to be limited to subjects of a similar nature, and if we assume for the sake of the argument that these inquiries are from their nature more applicable to a "going" than a "delinquent" bank, still appellant's contention fails. In addition to the examinations just referred to, the Superintendent of Banks "shall have power in like manner to examine every corporation whenever, in his judgment, its condition and management is such as to render an examination of its affairs necessary and expedient." This clause of the statute cannot be intended to give authority to conduct more frequent examinations of a similar character to those above referred to. The words "at least twice in each year" simply fix the minimum number of such examinations. Beyond that, their number is always in the reasonable discretion of the Superintendent. The words "in like manner" in the clause under consideration cannot, for the same reason, refer to those earlier provisions thereof indicating the scope of the examination. Thus construed, they would add nothing to the Superintendent's previously existing power. These words must, therefore, refer to the method of conducting the examination, which shall be either personally or by some competent person appointed by the Superintendent of Banks. If, therefore, it is reasonably shown to be "necessary and expedient" to examine into the affairs of a bank, whether active or delinquent, in order to enable the Superintendent of Banks properly to discharge the duties devolved upon him by the statute, such examination is authorized. Referring again to section 19 |