Feinberg Furniture Co. v. Overbaugh , 303 N.Y.S.2d 197 ( 1969 )

William J. Crangle, J.

The defendant moves to vacate and set aside a restraining notice issued by the attorney for the judgment creditor in accordance with CPLR 5222 and served upon the Montgomery County Trust Company, a banking institution in the City of Amsterdam. At the time that the restraining notice was served there was on deposit in the said bank the sum of $436.55 in a joint checking account in the name of Vito Venerosa and Elsie Venerosa. However, several days previous to this a check in the amount of $390 had been drawn by Vito Venerosa, the judgment debtor’s husband, payable to a third person. The bank had improperly failed to honor this check relying upon a restraining notice previously served by the judgment creditor restraining the transfer of any funds in the name of Elsie Overbaugh which was the judgment debtor’s name prior to her marriage to Vito Venerosa. All of the funds in the joint account were deposited by Vito Venerosa, were owned by him and were placed in the joint checking account as a matter of convenience for the operation of his business and the payment of his bills. When the restraining notice correctly designating the judgment debtor as Elsie Venerosa was later served upon the bank, it had already received the check and was subject to the order and direction of Vito Venerosa, the owner of all of the funds in the account, to transfer the sum of $390 to his drawee. The effect of the restraining notice, therefore, on checking account No. 464-224-4 in the name of Vito Venerosa or Elsie Venerosa is set aside and vacated, without cost to either party.