#### Rebecka Strauss, Respondent, *v.*The Yorkville Bank, Appellant.

(City Court of New York, General Term,

July, 1900.)

Injunction — Construction of order forbidding a bank to pay to a judgment debtor or to his wife.

Where a bank has been restrained, by order, from transferring its indebtedness due to a judgment debtor, named Max Strauss, and particularly from transferring or paying out any moneys deposited “ to the credit of the name of and under the account name of E. Strauss” (the wife of the debtor), it is justified in refusing to pay a check which the wife drew against such deposit after service of the order.

Appeal from a judgment of the City Court of the city of New York in favor of the plaintiff, entered upon findings and conclusions of the justice presiding at the trial term, upon a motion by both parties for the direction of a verdict.

The action was brought to recover damages for a refusal to honor the plaintiff’s check. The restraining order forbid the bank to transfer or dispose of its indebtedness due to the judgment-debtor, Max Strauss, “ and particularly to transfer or pay out for and on account of the moneys on deposit with it to the credit of the name of and under the account name of R. Strauss, or in any manner to interfere therewith until further order in the premises.”

*240Guggenheimer, Untermyer & Marshall (Moses Weinman, of counsel), for appellant.

Engel, Engel *&*Oppenheimer (J. G. Engel, of counsel), for respondent.

Hascall, J.

It appears that the appellant bank had on deposit certain moneys of the plaintiff; that a creditor, having a judgment against her husband, procured an order, in proceedings supplementary to execution, for the examination of an officer of the bank, upon allegations that the appellant had in its possession moneys of the judgment-debtor, or *an account in the name of B. Strauss, the wife of such debtor.*With such order was the usual injunction. The day following the date and service of the order respondent drew her' check to one Bernheim, against the deposit. The bank, claiming that it was under restraint by the court, declined to pay the check, upon presentation, and suit was brought; the action resulting in a direction by the learned justice presiding at trial term, of a judgment in favor of the plaintiff, upon the ground that the restraining order did not enjoin defendant from paying out the moneys to the plaintiff, or her order, since she herself was not the judgment-debtor. The case must turn upon the fact as to whether or not the bank could have honored the check without violation of the order of injunction? With the answer to this query will be found the proper conclusion upon this appeal. We think that the force and effect of the order were not exhausted, as in People v. Randall, 73 N. Y. 416, 422; that it was error to hold that the respondent bank was not under restraint; and that, therefore, its refusal to honor the plaintiff’s check was justified. The powers given by law, upon granting the enjoining order, are not limited in operation to the debtor alone; in terms they are “ or from suffering any transfer of * * * the property or debt *concerning*which any person is required to attend, etc.” So that it seems clear that, being obliged, first, to attend for examination, and, second, to prevent transfer of the moneys, the bank may not be condemned in costs, and by judgment, because of its obedience to the mandate of the court, and which obedience constitutes the ground of complaint against it It is not a case where the respondent would have been without means to obtain relief; she could easily have moved to obtain vacation or *241modification of the restraining order and the *bona fides*of the deposit could have been investigated;

Judgment appealed from reversed, with costs and judgment directed in favor of defendant, dismissing the complaint, with costs.

Schttohman, J., concurs.

Judgment reversed and judgment directed in favor of defendant, dismissing complaint, with costs.