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 judgment 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 *352were 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 tó 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 $100, 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*353fully 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 *354Reynolds, who it was said had a claim against the fund, was also a party to the action and answered and appeared on the trial, but he has not appealed from the judgment, and it also appears in the record that he disclaimed any right to any portion of the fund, so that as between the plaintiff and Joseph Fountain and Jean Fountain the judgment as to the ownership is final and conclusive, and as to Phillip Reynolds it is also a final adjudication that he has no interest whatever in the fund. It, therefore, stands adjudged that the moneys in the hands of the bank at the time the action was brought were moneys of Joseph Fountain and liable to the payment of his debts. If those moneys were still in the hands of the bank, it cannot be disputed that the bank would be fully protected in paying them to the plaintiff, nor that it would not be heard on appeal to dispute the validity of the judgment, when all of the parties who could claim any interest in the fund acquiesced in the judgment and were conclusively bound by its terms. The situation is in nowise changed by the bank having thoughtlessly and inadvertently paid the money improperly to the wrong party. The whole question of ownership and rights as between the only persons interested has been determined to their satisfaction, and if the bank has been the victim of a fraud, as it doubtless has been, it is one that cannot be remedied by an appeal from this judgment, for" it is simply through its own fault or negligence that it is placed in its present position.
It is unnecessary to consider the merits of the controversy between the plaintiffs and the other defendants, although if that were done, we think there is evidence-quite sufficient to show, from an analysis of the account, and from the general history of the dealings of the defendant Joseph Fountain with that account, and from the peculiar testimony of Jean Fountain in her deposition of June 22, 1895, and from her evident false statements respecting the relations of Phillip Reynolds to that account, to justify the court below in its finding respecting the question of ownership.
The judgment should be affirmed in so far as it requires the payment by the bank to the plaintiff of the amount of the balance and interest standing in the name of Jean Fountain, with costs.
Van Brunt, P. J., Williams and O’Brien, JJ., concurred; Ingraham, J., dissented.