App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. was conferred upon the common council power to make ordinances not inconsistent with the law and Constitution of the State; among other things, to regulate the use of the streets, to regulate the use of sidewalks, to regulate the use of streets for sidewalks, signs, sign posts, awnings, awning posts, etc., "and other purposes. The ordinances above referred to come distinctly within the 3d subdivision of the 86th section of the Consolidation Act, and within the power to regulate the use of the streets for the purposes mentioned. By the 17th subdivision of section 86 of the Consolidation Act the common council is authorized to pass ordinances with respect, among other things, to areas, and an ordinance has been referred to above which authorizes the setting apart of areas extending five feet from the house line. This subdivision relates to the construction, repair and use of such areas, and the ordinance allowing bay windows, read in connection with that relating to areas, authorizes the construction of such bay windows within the inclosure of the area, for it is an ordinance affecting the use of that area, and within the power of the common council to pass. The ordinance of 1895 permits the construction of the bay window within the area space, so long as that construction does not encroach more than one foot beyond the street line. Reading these ordinances together, and in connection with the power conferred upon the common council by the 86th section of the Consolidation Act, authority to build the bay windows under proper permission can be inferred. And so with reference to the building of the stoop on St. Nicholas avenue. Section 86, as said before, recognizes a stoop line, and the ordinance above referred to in that connection authorizes the building of stoops within that line, and not only the fact of the city's consent is shown, but the authority to give that consent is also made to appear. But it is said that subdivision 4 of section 86 of the Consolidation Act applies and places an interdict upon the common council granting authority to build these bay windows and the stoop or portico. That subdivision of the section provides that the common council shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. This subdivision of section 86 must be con FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 15. strued with reference to the other subdivision, and is not to be interpreted as nullifying such express authority to do particular things as is given by such other subdivisions, but is to be construed as excluding or excepting such things as are specifically authorized by the other subdivisions. (Hoey v. Gilroy, 129 N. Y. 132.) The provisions cited of subdivision 4 of section 86, relating to placing or continuing encroachments upon any street or sidewalk, can only be reasonably applied to that part of the highway which is used by the public; that is to say, the carriageway and the sidewalk proper outside of the stoop line, and, as to the space within that line, is inoperative as affecting certain constructions authorized by the Consolidation Act, as was held in the case cited. In view of all the provisions of section 86, and of all the ordinances passed by the common council relating to the use and regulation of the streets, the prohibition of subdivision 4, above cited, can receive no other reasonable interpretation. None of the objections taken to the marketability of the title to the plaintiff's property are well founded, and the ruling of the court below was erroneous, and the judgment must be reversed and judgment for specific performance of the contract as demanded in the complaint directed, with costs in the court below and in this court to the plaintiff. WILLIAMS, O'BRIEN and INGRAHAM, JJ., concurred; VAN BRUNT, P. J., dissented. VAN BRUNT, P. J. (dissenting): I dissent. The power to regulate areas gives no power to devote the same to other purposes than those of an area, such as filling up, in whole or in part, by permanent building. Such a rule would enable the common council to authorize the extension of all buildings into the street. Judgment reversed and judgment for specific performance directed, with costs to plaintiff in this court and in the court below. App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. A. T. ALBRO COMPANY, Respondent, v. JOSEPH FOUNTAIN and Others, Defendants; UNION DIME SAVINGS INSTITUTION, Appellant. Payment- moneys of a husband fraudulently deposited in a bank in the wife's name -liability of the bank to a judgment creditor of the husband, for paying them, after notice, on the wife's check. A bank which, after having received notice, by the service of a summons and complaint, that a judgment creditor of a husband makes claim to a deposit standing on its books in the name of the debtor's wife, pays the deposit to a sheriff upon the wife's check upon a judgment recovered against the wife (after an ex parte order directing it to make this payment has been vacated), is liable to the judgment creditor of the husband, upon proof that the moneys, although standing in the name of his wife, were in fact the property of the husband. INGRAHAM, J., dissented. APPEAL by the defendant, the Union Dime Savings Institution, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of July, 1896, upon the decision of the court rendered after a trial at the New York Special Term. John McG. Goodale, for the appellant. Eugene Frayer, for the respondent. PATTERSON, J.: The plaintiff, a judgment creditor, qualified to sue, brought this action to reach moneys on deposit with the defendant bank to the credit of Jean Fountain, upon allegations, substantially to the effect that such moneys were the property of Joseph Fountain, the judg ment debtor, and which ought to be applied to the payment of Joseph Fountain's debt. The cause was at issue on the answers of all the defendants, and by that of the bank all the material facts stated in the complaint were denied. It appeared in evidence that the defendant Jean Fountain was a depositor with the defendant bank, and moneys or checks received by her from Joseph Fountain were credited in her account. On the 18th of May, 1895, Joseph Fountain received a check for $750 from one Engle, and it was claimed by the plaintiff that $650 of the proceeds of that check FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 15. were deposited on May 20, 1895, in the defendant bank, in the name of Jean Fountain, and credited in her account; and it was further claimed that such deposit was made in order to secure the same from the pursuit of creditors of Joseph Fountain, and with the intent of disposing of the same to hinder, delay and defraud creditors. It also appeared in evidence that during the pendency of this action, and before trial, the Union Dime Savings Bank paid over all the balance of moneys on deposit to the credit of Jean Fountain (excepting a few cents) upon her check, to the sheriff of the city and county of New York, to be applied on a judgment recovered by one Perkins against her. The payment thus made by the bank was after full notice to and knowledge by it of the exact claim of the plaintiff with reference to the true ownership of the money. The bank had such notice, not only through this suit, but independently. It paid the money under the following circumstances: It seems that Perkins had recovered a judgment in the City Court against Jean Fountain prior to September, 1895, and that court, on the 3d of September, 1895, made an ex parte order upon the application of Perkins, directing the Union Dime Savings Bank to pay over to the sheriff the money on deposit with it to the credit of Jean Fountain. The Union Dime Savings Bank then made a motion to the City Court to set aside that order, and, on that motion, presented an affidavit of the treasurer of the bank, asking that the order be vacated, on the ground that on the 3d of July, 1895, the bank was served with a summons and complaint in this present action, in which complaint it was set forth that Joseph Fountain, being a judgment debtor of the present plaintiff, had fraudulently sought to escape payment of this judgment, by having the sum of $700, equitably belonging to him, deposited in the Union Dime Savings Bank in the name of his wife, Jean Fountain, and for the purpose of delaying and defrauding creditors. The affiant further stated that the bank had interposed an answer in this suit; that it was put in in good faith by the bank, and the bank intended to defend in good faith; that the ownership of the money was disputed by the bank, and then proceeded to say "that said bank is indifferent as to who is the proper owner of said deposit and lawfully entitled to the same, and said bank only holds said money in order that it may pay over the same to the person law App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. fully entitled thereto," and that said order directing the payment to Perkins was entered without notice to the bank and without notice to the plaintiff in this action; that the bank had been advised by its attorneys that it could not safely make payment under the order of the City Court without liability on its part, inasmuch as it had actual or constructive notice of the claim of the plaintiff and of one Reynolds, another claimant of part of the money. Upon this showing the order of the City Court was vacated, notwithstanding which the bank subsequently paid the money to the sheriff as above stated. On the trial of this action the court at Special Term found that the money on deposit in the Union Dime Savings Bank in the name of Jean Fountain did belong to Joseph Fountain, her husband, and that the same was fraudulently deposited in her account and that it was applicable to the payment of the plaintiff's judgment, and directed judgment against the bank for the amount of the balance standing in the name of Jean Fountain, with interest and costs, and from that judgment the bank appeals. We are to consider and dispose of this appeal precisely as if the bank had not parted with the money, but still retained it, and so considering it, the attitude in which the bank stands to the litigation is merely that of a disinterested holder of money, obliged to protect the title of its depositor, but having no other right and no other interest in the subject of the action than in subordination to the right of the real owner. The affidavit of the treasurer of the bank, part of the evidence in the case, discloses fully and correctly the relation in which the bank stands to the subject. The contest was really one between the plaintiff and Jean Fountain; it was incumbent upon the plaintiff to show facts which would establish its claim that the money was not hers but her husband's, and any judgment rendered between the plaintiff and her would be conclusive of the rights of the principal parties, and of the bank's right to retain the money. There was sufficient evidence to justify the conclusion of the court with reference to the real ownership of the money. The record recites that Joseph Fountain and Jean Fountain appeared by counsel on the trial. The answers of these persons are not inserted in the appeal book, but they did appear and answer. They have not appealed from the judgment. One Phillip APP. DIV.-VOL. XV. 45 |