The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a motion made by the defendants to dismiss the complaint on the following grounds:
1. That the complaint fails to state a claim upon which relief can be granted.
2. That the complaint shows upon its face that the levying of the stock assessment by the Comptroller of the Currency on the stockholders of the National Bank of Ridgewood in New York, the collection of which assessment is sought to be restrained, was done in pursuance of the exclusive administrative jurisdiction, authority, discretion and judgment of the Comptroller of the Currency vested in him by law, and to dismiss the bill of complaint upon such other and further grounds and reasons as will be apparent on the face thereof.
The motion is based upon the complaint and bill of particulars.
Under Rule 12(e) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is provided "A bill of particulars becomes a part of the pleading which it supplements".
The bill of particulars, however, does not supercede the complaint, but limits it, and makes its allegations more definite and certain.
This action was brought to enjoin defendants from enforcing a stock assessment on the stockholders of the National Bank of Ridgewood in New York, which will hereinafter be referred to as "Ridgewood Bank".
Prior to the 29th day of August 1931, the Ridgewood Bank conducted a banking business in Ridgewood, Queens County. On that day it had deposit and other liabilities amounting to $1,172,757.36. The capital of said Ridgewood Bank was $200,000 represented by 2,000 shares of stock at the par value of $100 each.
The Board of Directors and more than two-thirds of the stockholders decided that it would be advantageous and beneficial to the Ridgewood Bank, its shareholders and all other interested parties, to discontinue banking operations and liquidate, and it was agreed between the Ridgewood Bank, acting through its officers, pursuant to the direction of the Board of Directors and more than two-thirds of the stockholders, and the Richmond National Bank of New York, hereinafter called the "Richmond Bank", that the book liabilities of the bank to depositors and creditors which were specifically set forth (and which did not include liability of stockholders), be assumed by the Richmond Bank in consideration of such assumption of liability by the Richmond Bank, the Ridgewood Bank executed and delivered its note, in the amount of $1,172,757.36 which was the exact amount of its liabilities assumed by the Richmond Bank, and assigned to Richmond Bank all of its assets as collateral security to said note. Among other things, it was provided, in said agreement, that the Richmond Bank, who, at all times, until it had been paid in the full amount of the debt and obligation of the Ridgewood Bank to it, have the right to rediscount or pledge as collateral security for money borrowed, any or all of the assets of Ridgewood Bank in its hands as collateral in the same manner as if the said assets were the absolute property of Richmond Bank.
The note, given by the Ridgewood Bank, recites similar provisions. The Ridgewood Bank no longer functioned as a going institution, but it still retained its entity as a National Banking Association.
August 29th, 1931 was a Saturday, and on August 31st, 1931 the name appearing on the quarters formerly occupied by the Ridgewood Bank, was changed from National Bank of Ridgewood in New York, to Richmond National Bank of New York, and the Richmond Bank widely advertised it, as a new branch of Richmond Bank, and all checks drawn on the deposits, which had been in Ridgewood Bank, were at Richmond Banks' direction, made to be drawn instead, on Richmond Bank.
The Richmond Bank remained as a going institution until March 4th, 1933, when it, like all other banks, was closed by proclamation and it has never since reopened.
On March 16th, 1933, a Conservator was appointed for Richmond Bank, and on November 14th, 1933, a Receiver was appointed therefor, who took possession of the books, records and assets of every description of Richmond Bank, ...