In re Sohmer

This application is made by the State Comptroller, pursuant to the provisions of section 744a of the Code of Civil Procedure, which are as follows: ‘ ‘ The Comptroller may examine the books, accounts and vouchers of every bank and trust company in the State, in anywise relating to moneys and securities paid into court, under an order of any court of record; and where the same has not been paid to the chamberlain of the city of - New York, or to any county treasurer of the State, the Comptroller upon an application duly made shall be entitled to an order directing the payment and transfer of all such money and securities from any of such banks and trust companies to the treasurer of the proper county, and in the city of New York to the city chamberlain.” (See Laws of 1908, chap. 182.)

The funds in question were deposited with the trust company on the 3d day of December, 1907, in an action in the Supreme Court, wherein one Mary D. Sanford was plaintiff and the Anticlinal Eock Oil Company was defendant, and aggregate the sum of $1,363.44, together with interest thereon at the rate of three per cent- per annum - from the 1st day of November, 1912.

The memorandum opinion at Special Term shows that the *783motion was denied on the ground that all parties interested in the funds should be given notice thereof. This new section of the Code of Civil Procedure, as construed by the Court of Appeals (Matter of Walsh, 204 N. Y. 276), entitles the Comptroller of the State to such an order, and does not require that notice of "the motion be given to the parties interested in the . funds." It is manifest that if the funds are to remain in court, the Legislature, on the facts here presented, has commanded that they be transferred to the city chamberlain. The only conceivable theory upon which notice could be of avail, and, therefore, might properly be required, would be in a case where it is apparent that it is no longer necessary to retain the funds in court; but there is nothing in the record to indicate that such is this case, and it should not be assumed, for that would put the State to considerable expense to make personal service, or service by publication, on every such application. The rights of the parties interested in the funds are not affected in the • least by the change of custodian, and since it is unquestionably within the power of the Legislature to designate the custodian of such funds (People v. Keenan, 110 App. Div. 537; affd., 185 N. Y. 600; Matter of City of New York, 200 id. 138; Matter of Walsh, supra; 151 App. Div. 885), the motion should have been granted.

We do not agree, however, with the learned Deputy Attorney-General, that the costs and disbursements of this appeal should be paid out of the funds. On that question certainly the parties in interest would be entitled to be heard.

It follows, therefore, that the order should be reversed and motion granted, without costs of the appeal or of the motion.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed and motion granted, without costs.