
    SUMMERFIELD v. GOLDSTEIN et al.
    (59 Misc. Rep. 387.)
    (City Court of New York, Special Term.
    May, 1908.)
    1. Execution—Property Subject.
    As a bank does not keep specific money deposited, but merely promises to favor any demand made upon it by the depositor, it is not subject to levy under execution.
    2. Same—Supplementary Proceedings.
    An order, under Code Civ. Proc. § 2436, requiring a judgment debtor to apply moneys deposited in the bank to satisfy an execution, is proper.
    Action by Maurice Summerfield against Philip Goldstein and Louis Donbrowsky. Judgment for plaintiff.
    Motion in supplementary proceedings denied.
    Moses H. Rothstein, for judgment creditor.
    Horace London, for judgment debtors.
   SCHMUCK/J.

In order to entitle a judgment creditor to the ad-

vantages 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 be 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. Garcia v. Morris, 51 Misc. Rep. 592, 101 N. Y. Supp. 253; Carbonating Co. v. Bennett, 56 Misc. Rep. 47, 105 N. Y. Supp. 1052.

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 creditor three days’ notice, specifically referring to rule 16, is ineffective, as rule 16 does not apply.

Motion denied.  