Summerfield v. Goldstein

City of New York Municipal Court

Summerfield v. Goldstein

59 Misc. 387, 112 N.Y.S. 357

DecidedMay 15, 1908

StatusPublished

This text of 59 Misc. 387 (Summerfield v. Goldstein) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Summerfield v. Goldstein, 59 Misc. 387, 112 N.Y.S. 357 (N.Y. Super. Ct. 1908).

Pincite

Opinion

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 [388]*388case, 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.

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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 [388]*388case, 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.

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Bluebook (online)

59 Misc. 387, 112 N.Y.S. 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summerfield-v-goldstein-nynyccityct-1908.