Bromberg v. Bank of America National Trust & Savings Ass'n , 58 Cal. App. 2d 1 ( 1943 )

WHITE, J., Concurring.

Appellant strongly relies upon the case of American Surety Co. v. Bank of Italy, 63 Cal.App. 149, [218 P. 466], but that case holds, as we have herein pointed out, that it is settled law expressly provided by section 3054 of the Civil Code [hat a banker has a lien upon? and therefore possesses the right to appropriate, any money or property in his possession belonging to a customer to the extinguishment of any matured indebtedness of such customer to the bank, subject, of course, to the provisions “that such property or money so deposited has not been charged, with the knowledge of the bank, with the subserviance of a special burden or purpose, or does not constitute a trust fund, of which the banker had notice.” In the same case it is also stated (p. 159) that while “a depositor may establish an account in a bank under a special designation or earmarked as a particular account, and yet, in the absence of an agreement with or instructions to the banker that the account so earmarked is a special deposit or is to be used for a specific purpose, the moneys deposited therein are to be regarded as belonging to the general account of the depositor and may be so treated by the bank.” In the instant case no contention is made by appellant that the funds in his special savings account or any of his accounts come within any of the exceptions to the general rule concerning a banker’s lien upon money or property in his possession belonging to a customer. Therefore, no triable issue of fact was presented, and the motion made under the provisions of section 437e of the Code of Civil Procedure was properly granted.

Appellant’s petition for a hearing by the Supreme Court was denied June 3, 1943.