Master v. Bowery Savings Bank , 63 N.Y.S. 964 ( 1900 )

O’Dwyeb, J.

The defendant asked “ That it be allowed to pay into court the funds, the subject of, this action; and that thereupon the respondent Mandelbert Canfield, a claimant of the said fund, be substituted in defendant’s place as a party defendant and that it be struck out as a party defendant herein and freed from all liability to either of the respondents on account of the said sum.” The application for such relief was made by the defendant under the provisions of the Banking Law and of the Code of Civil Procedure. Section 115, chapter 689, Laws of 1892 (the Banking Law), provide^ that “ In all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons, not parties to the action, who claim the same fund, the court in which the action is pending, may, on the petition of such savings bank * * * make an order amending the proceedings in the action by making such claimants parties defendant thereto; * * * The funds on deposit which are the subject of the action may remain with such savings bank * * * or the deposit in controversy may be paid into court to await the final determination of the action; and when so paid into court the corporation shall be stricken out as a party to any such action, and its liability for such deposit shall cease.” The defendant now insists that it was clearly intended by this' statute to enlarge the rights of savings banks by granting this relief in all actions. In this contention we cannot concur inasmuch as the statute has limited by clear and concise language the relief to actions to recover for moneys on deposit with the bank. From an examination of the complaint it appears that the plaintiff in this action does not claim that he is entitled to any moneys on deposit in the defendant’s bank. The action is on a draft, presumably on the theory that a bank is liable to the drawee of a draft before acceptance. The defendant is under no obligation to the holder of a draft to pay the same, and the drawing of a draft or check does not operate as an assignment, equitable or legal, of the funds in the hands of the drawee. Laws of 1897, chap. 612, §§ 211, 325. These provisions of law apply to a draft drawn upon a savings bank, as well as to a drawee of any other character; nor can the relief sought be had under section 820 of the Code of Civil Procedure, inasmuch as there is no property in dispute nor is there any contractual relations between the plaintiff and the defendant.

The complaint is demurrable. The order apppealed from is right, and should be affirmed with ten dollars costs and disbursements.

McCarthy, J., concurs.

Order affirmed, with ten dollars costs.