189 Misc. 190 | N.Y. Sup. Ct. | 1947
Motion for summary judgment under rule 113 of the Buies of Civil Practice is granted. This is a statutory action brought in aid of an attachment. Plaintiff Lewis instituted an action in which he obtained an attachment against Aireon Manufacturing Corporation. The attachment was served upon the Chase National Bank of the City of New York, which is the defendant in this action. That bank had. in its possession a sum in excess of the amount of the demand of plaintiff Lewis as indicated in the attachment. The bank has ' .refused to turn over this sum to the plaintiff sheriff, on the ground that it is being held in a special account for a special purpose and constitutes trust funds. If the amount deposited
The service of the warrant and the existence of the fund sought to be attached are not disputed. The facts from which the nature of the fund could be determined are before the court in the depositor’s resolution creating the fund, the provisions of the depositor’s articles of incorporation with reference to the setting aside of the fund; the letters of the depositor to the defendant with reference to the fund, and a partial transcript of the testimony of defendant’s officer given in an examination under section 919 of the Civil Practice Act. From the matters therein disclosed, none of which are in dispute, there is no issue of fact and there results only a question of law which will be determined. The depositor’s letter of June 30,1945, directed the defendant to set aside $23,000 from its depositor’s general funds and to keep them in an account designated as “ Special Preferred Stock Retirement Fund Account ”. The amount was set up in accord with the provision of the depositor’s preferred stock issues. The resolution covering withdrawals from the bank refers to the designation of the account but places no limitation whatever on the right of withdrawal. The articles of incorporation of the depositor corporation indicate (art. 5-d) that the corporation may redeem its preferred stock and under subdivision e of the same article an obligation is imposed on the corporation to set aside 10% of its profits and deposit same in an account bearing the designation of that maintained with defendant. The amounts to be set aside “ shall be applied