
    Maurice Summerfield, Plaintiff, v. Philip Goldstein and Louis Donbrowsky, Defendants.
    (City Court of New York, Special Term,
    May, 1908.)
    Supplementary proceedings — Order for payment or delivery of property— Order to apply property in general — Property subject to order.
    Execution against property — Property subject to execution — Deposits of money.
    Money on deposit in a bank is not subject to levy under an execution; and an order requiring a judgment debtor to apply moneys so deposited toward satisfying the judgment, pursuant to section 2436 of the Code of Civil Procedure, is proper.
    Motion in supplementary proceedings. The opinion states the case.
    Moses H. Rothstein, for judgment creditor.
    Horace London, for judgment debtors.
   Schmuck, J.

In order to entitle a judgment creditor to the advantages of section 2436 of the Code of Civil Procedure it must be clearly established that the judgment debtor has property which he unjustly refuses to apply toward satisfying the judgment. If the property can be reached by a levy, the debtor is not required to turn over the property. The provisions of section 2436 should only he used to succor a judgment creditor where it is satisfactorily shown that the debtor has property not subject to levy or which is so kept by the debtor that it cannot be identified and, by the exercise of reasonable diligence, reached by execution. ' Morris v. Garcia, 51 Miso. Rep. 592; Carbonating Co. v. Bennett, 56 id. 47. The question arises, is money deposited in bank of such nature that it is exempt from levy? As the banking institution does not keep the specific money deposited but merely promises to favor any demand made upon it by the depositor, the property in this case, money on deposit, would not appear to be of such kind as may be reached by a levy. The moving papers, therefore, in this respect conform with the provisions of the Code. The objection that the judgment creditor failed to give the judgment debtors three days’ notice, specifically referring to rule XVI, is ineffective, as rule XVI does not apply.

Motion denied.  