Smith v. Tostevin
Court of Appeals for the Second Circuit
Appeal from the District Court of the United States for the Southern District of New York. Bill by Richard O. Smith, as trustee in bankruptcy of Clifford Lc P. Tostevin, against Rose II. Tostevin and others. From a decree dismissing the bill, complainant appeals. Appeal from a final decree dismissing a bill in equity upon its face for insufficiency.
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Appeal from the District Court of the United States for the Southern District of New York. Bill by Richard O. Smith, as trustee in bankruptcy of Clifford Lc P. Tostevin, against Rose II. Tostevin and others. From a decree dismissing the bill, complainant appeals. Appeal from a final decree dismissing a bill in equity upon its face for insufficiency. The substantial allegations of the bill were as follows: On September 22, 1016, one Tostevin borrowed of the defendant bank .$3,000' and pledged as security 13 shares of corporate stock, the property of his wife, given for that purpose by her. On…
1Opinion of the CourtLearned Hand, District Judge
(after stating the facts as above). [1,2] If Rose Tostevin, the wife, had been a surety for the loan, it is settled that the payment would have been a preference under section 60b. Swartz v. Siegel, 117 Fed. 13, 54 C. C. A. 399; Re Lyon, 121 Fed. 723, 58 C. C. A. 143. Before insolvency the surety, by payment of the debt, gets through subrogation the status of a transferee, and that status protects him from loss. After insolvency, while he is, of course, still subrogated, his subrogation will not protect him. Lie must pay without recourse, and he loses to the extent of the insolvency. A…
2Cases cited6 opinions
- Swarts v. SiegelCourt of Appeals for the Eighth Circuit · 1902
- The Bank of Albion v. . BurnsNew York Court of Appeals · 1871
- Dibble v. . RichardsonNew York Court of Appeals · 1902
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- Price v. Dime Savings BankIllinois Supreme Court · 1888
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