New York Post Corp. v. Newman , 329 N.Y.S.2d 942 ( 1971 )

Paul Kelly, J.

This is a motion by the defendant for an order pursuant to CPLB 5240 vacating the restraining provisions contained in the subpoena duces tecum issued from the Civil Court of the City of New York, New York County, to the Chemical Bank, dated October 26, 1971 and releasing from said restraining provision the joint checking account of Norman Martin Newman and Ann Mary Newman.

The defendant contends the funds remaining in this checking account represent the balance of his earnings and are necessary to meet current family expenses. The defendant is presently unemployed.

The plaintiff argues that these funds are all that remain of the $286.40 cash-in receipts collected by the defendant while acting in a fiduciary capacity for the New York Post Corporation. The source of said funds having been a misappropriation, they are not income.

The court has examined the papers in great detail. The defendant’s bank statements indicate there has been substantial activity since the deposit of the funds in issue. The court cannot accept the rationale that the funds presently in the account are the remains of the cash-in receipts.

The language of Power v. Loonam (49 Misc 2d 127), decided by Justice Hogan of the New York Supreme Court,. County of Nassau, is controlling herein. Therefore, the motion is granted to the extent that the order hereunder shall vacate the restraining notice and further direct that 10% of the funds shall be turned over to the attorney for the judgment creditor to be applied in reducing the unpaid balance.