
    In the Matter of the Administration of the Estate of James White, Deceased. Emigrant Industrial Savings Bank, Appellant; Mary White, as Administratrix, etc., of James White, Deceased, Respondent.
    Second Department,
    April 19, 1907.
    Executors and administrators — proceeding under section 2707 of the Code of Civil Procedure — debt to estate not collectible thereby,
    A proceeding under section 2707 et séq: of the Code of Civil Procedure to compel the delivery of property belonging to an estate withheld' by another-cannot be used as a means of collecting á debt.
    Thus; a bank holding moneys deposited by a decedent cannot be required to pay the same over to an administrator by such summary proceeding, the position of the bank being merely that of a debtor.
    
      Appeal by the Emigrant Industrial Savings Bank from a decree of the Surrogate’s Court of the county, of Kings, entered in. said Surrogate’s Court on the 29th day of June, 1906," directing , the appellant forthwith to pay to Mary Wliite, as administratrix of James White, deceased, thestim of $910.66.
    
      liicharcl O’ Gorman, for the appellant.
    
      William F. Hagarty, for the respondent.
   Hirschberg, P. J.:

These proceedings have been instituted pursuant to section 2707 of the Code of Civil Procedure -and .the sections following, which provide for the discovery and delivery of property belonging to the estate of a deceased person but withheld by another. The process is summary. On presentation to the surrogate of a petition made by an executor or administrator, setting forth facts tending to' show ' that money or other persohal property which should be delivered to such executor or administrator, of which should be included in • an inventory or appraisal, is in the possession óf a persdn who withholds the same, a citation must be issued by the surrogate requiring such person to appear, before him for examination. If on such examination it' appear that the individual cited, is in the possession of property to whose immediate possession the petitioner is entitled, the surrogate may decree that the property be delivered to the petitioner.

In this instance the petition of the administratrix states, in substance, that her intestate deposited the sum of $910.66 in the Emigrant Industrial Savings Bank; that she demanded the delivery of the money to her on the 1st day of May, 1906, and that "the institution wholly failed and refused to deliver the same. Accompanyihg the petition and. annexed to it is an affidavit setting forth the fact that on the 12th day of. September, 1894, the affiant accompanied the deceased to the bank where the" latter opened the accoun t, received the pass book and delivered it to the affiant, by whom it was, kept until it was was turned over by him to,the administratrix on her appointment as such. On the return of the citation issued upon this petition and affidavit, the administration .clerk of the savings bank appeared in. the Surrogate’s Court and was examined, such examination disclosing, the fact, that "the account was duly opened as stated by the petitioner; that the balance due on the account amounts to $910.66, which has not been paid to the administratrix but remains in' the possession of- the bank, notwithstanding a demand was made by her for the money. The decree is based upon a finding. made upon this evidence, to the effect “ that the Emigrant Industrial Savings Bank has in its possession and is in ■ control of Nine hundred and ten and 66/100 dollars ($9Í0.66), the property of the deceased,” but this finding is wholly without evidence to support it.

The facts presented do not justify the proceedings. The provisions of the Code of Civil Procedure in question are\ designed for the purpose' of discovering specific property or specific money in coin and bank bills belonging to the deceased and withheld, on which discovery they may be ordered delivered summarily, but the provisions do not contemplate the collection of a debt by summary process. When the deposit was made in this case the money deposited became the property of the bank and remains its property, the obligation of the bank being limited to that of a debtor who may be compelled to pay his debt by the ordinary and due process; of law. This has been often held.

In Whitlock v. Bowery Savings Bank (36 Hun, 460) the court said (p. 461): “ By the deposits which were made the bank became á meré debtor to-one or both of the depositors (People v. Mechanics’, etc., Sav. Inst., 92 N. Y. 7), and its liability consisted in its obligation to pay the debt so created on demand of the party entitled'to receive it.”

In People v. Mechanics & Traders’ Sav. Inst. (92 N. Y. 7) it was held that the primary relation of a depositor in a savings bank to .the corporation is that-of creditor.

In Fowler v. Bowery Savings Bank (113 N. Y. 450) the court said (p. 453): “ The relation between a savings bank and a depositor therein is that of debtor and creditor, arid the défendant, therefore, became a debtor for the sum deposited with it by'John White.”

In People ex rel. Bridgeport Sav. Bank v. Barker (154 N. Y. 128) the court said (p. 131): “ The bank is liable to pay the depositor the amount of his deposit as a debt.”

In Estate of Knittel (12 Civ. Proc.: Rep. 1) it was held by the surrogate of the county of New York that the Code provisions in question do not authorizé the examination of the president of a savings bank in which a deposit has been made in trust for a decedent. (See, also, Matter of Stewart, 77 Hun, 564.)

The fact that no answer was filed in this case by the savings bank is not important. The filing of . an answer does not seem essential. (Matter of Carey, 11 App. Div. 289.)

The learned counsel for the' respondent argues that on the evidence the surrogate was justified in finding that the balance due, that is, the sum of $910.66, was a definite parcel of coins, treasury notes or. bank bills.” I do not think the situation would be different were the bank still in possession, of the identical coin, treasury notes or. bank bills which were deposited by the decedent in 1894, but certainly there is no evidence that they were.retained by the bank for a period of twelve years, nor is there a finding to that effect. It follows that the decree should be reversed, with costs, and the proceeding dismissed.

Hookeb, Gaynob, Rich and Milleb, JJ., concurred. .

Decree oif the Surrogate’s Court of Kings county reversed, with costs, and proceedings dismissed.  