ARTHUR J. KOSTER, Appellant,
LAFAYETTE TRUST COMPANY, Respondent.
APPEAL by the plaintiff, Arthur J. Koster, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 7th day of April, 1911, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term, dismissing the complaint upon the merits.
Joseph M. Gazzam [Edward M. Grout with him on the brief], for the appellant.
Roswell S. Nichols, for the respondent.
JENKS, P. J.:
The plaintiff appeals from a judgment that dismisses his complaint on the merits. On October 25, 1907, a temporary receiver in an action for a dissolution of the defendant took possession of its property. On or about April 15, 1908, certain of the directors furnished moneys for the use of the defendant, and an agreement in writing was entered into by them with the defendant. The essential parts of the agreement are as follows:
'WHEREAS, the said Trust Company closed its doors as a banking institution on or about the twenty-fifth day of October, 1907, and
'WHEREAS, many of the directors at that time were and now are directors of said institution, and
'WHEREAS, the directors are anxious that said institution should resume business, and that the receiver appointed by the Supreme Court for said institution should be removed, and said institution fully rehabilitated.
'Now, in consideration of the sum of one dollar to each of the directors in hand paid by the Trust Company, the receipt of which is hereby acknowledged, and in consideration of the performance of the covenants and agreements herein contained, the parties hereto agree as follows:
'The directors will loan to the Trust Company the various sums of money hereinafter written after the names of the individuals composing the parties of the first part, and aggregating the sum of one hundred thousand dollars.
'It is further agreed between the parties hereto that said loan
shall mature and become payable as follows, and not otherwise, namely: Whenever the surplus of said Trust Company shall exceed the sum of one hundred fifty thousand dollars, such excess shall be applied to the repayment of said loan, but no such application of excess over such one hundred fifty thousand dollars surplus shall be made upon such loan, except in periods of six months each after the date hereof and a lapse of six months between such payments.
'That the loan hereby made by the directors to the Trust Company shall bear interest at the rate of 4% per ...