206 Misc. 887 | N.Y. Sup. Ct. | 1954
The judgment creditor recovered a judgment against “ Marion Chappelle, also known as Marion Browning, also known as Marian Browning ”. Following entry of judgment subpoenas in supplementary proceedings were served on the Dollar Savings Bank, which subpoenas enjoined transfer of certain savings accounts in said bank in the names of Louise Lillian Chappelli and Louise Brown. Louise Chappelli moved to vacate the subpoenas on the ground that she was not the judgment debtor. The matter was referred to Hon. Edward Koch, Official Referee, to report on the question of whether the depositor was the judgment debtor. After hearings the Official Referee found that the depositor Louise Chappelli was the same person as Marion Chappelle, the defendant in the action. He also found that the defendant used different names for the purpose of deception. He also found that there was a Louise Brown who opened the other account but that the funds in that account belonged to Louise Chappelli who used Louise Brown as a dummy. The objections to the Referee’s findings are not well taken and consequently the motion to disaffirm the report is denied. The cross motion insofar as it seeks to confirm the report is, consequently, to be granted, but the additional relief requires further examination.
The cross motion seeks a direction to the savings bank to pay over the amount of the judgment plus some additional amounts out of the accounts. This is resisted by the bank unless the bankbooks are presented or an indemnity bond is submitted. The bank relies on subdivision 3 of section 238 of the Banking Law. The provisions of that statute allowing the bank to make such conditions have been held to apply to payments sought by judgment creditors. (Matter of Elvira Apts. v. Kidd, 259 App. Div. 874; Matter of Yonkers-Cameo v. Liossatos, 262 App. Div. 996.) It is true that a contrary view, supported by very practical reasons, was taken in Matter of Swytak v. Duda (182 Misc. 285). And the general proposition that in certain instances production of the passbook and a bond may be dispensed with (Myers v. Albany Sav. Bank, 270 App. Div. 466, affd. 296 N. Y. 562) was stated in a dictum to apply to the situation involving judgment creditors (Matter of Morgan v. Toth, 196 Misc. 860).
However, neither of these authorities can be said to prevail
In addition, the judgment creditor seeks an order in excess of the amount of the judgment. The first is for an allowance pursuant to subdivision 3 of section 322 of the Civil Practice Act for the cost of proving certain facts denied by the debtor upon a written request to admit. The facts in regard to this application are somewhat bizarre, but setting them out and resolving the ensuing controversy can be spared. Section 322 of the Civil Practice Act has application to an action only. It does not refer to a special proceeding. As this is not an action, it has no application.
The second request is for costs pursuant to section 803 of the Civil Practice Act. The items allowable and proved under this section would be $64.85 witnesses’ fees and an additional sum as provided of $50. These sums, plus the judgment of $548.66, or a total of $663.51, are directed to be paid pursuant to section 794 of the Civil Practice Act, subject to the conditions as to the third-party bank above referred to.