Capital City Surety Co. v. De Luxe Sightseeing Co.

Finelite, J. This is a motion made by the assignee of the judgment creditor for an order directing the corporation judgment [751] debtor to apply the funds on deposit to its credit with the American Exchange Bank towards the payment of said judgment, and also directing the said bank to pay to the sheriff out of the moneys on deposit with it by the judgment debtor the amount of such judgment. While money on deposit in a bank is commonly considered to be the property of the depositor, the relationship in fact between him and the bank is that of debtor and creditor, and the amount on deposit represents merely an indebtedness by the bank to the depositor. For this reason the provisions of section 793 of the Civil Practice Act, requiring delivery of money to the sheriff, where the same belongs to a debtor, but is in the possession of a third party, do not apply and cannot be availed of here. Nor, within the wording of said section, is the money on deposit money belonging to the judgment debtor. The only relief that may be given to the creditor is that provided by section 792, under the provisions of which an order may be made permitting a person or corporation indebted to the debtor to pay to the sheriff the amount of such alleged indebtedness, and under the prayer for other and further relief the court will grant the motion to the extent of permitting the bank to pay over to the sheriff an amount sufficient to satisfy the execution. Submit order.