(dissenting). The sole issue raised by the bank on this appeal is whether the Surrogate’s Court has jurisdiction to compel the depository to pay the balance of the account to the administrator of its deceased depositor.
The bank has a right to decide whether it will insist on compliance with the legal proprieties or act on the basis of business judgment. “ Nevertheless, when the jurisdiction of an important court is the main issue, our duty is plain. The public interest and the interest of jurisprudence might be endangered by permitting this issue to go unchallenged ’ ’ (Matter of Miller, 257 N. Y. 349, 357).
It is' so well settled that the relation between a bank and'its depositor is one of debtor and creditor that we need not cite authority for the proposition. Nor is there any doubt that an action to recover a:bank deposit must be one founded on debt (Petrogradsky M. K. Bank v. National City Bank, 253 N. Y. 23, 39).
The jurisdiction of thé Surrogate’s Court is entirely statutory (Matter of Hyams, 237 N. Y. 211; Matter of Thompson, 184 N. Y. 36). The authority of the Surrogate to entertain discovery proceedings is found in sections 205. and 206 of the Surrogate’s Court Act. It might be well to note that section 206 relating to the nature of the decree that the Surrogate may enter provides: “ If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery *455thereof to him ’ ’. It is well settled that these provisions do not confer jurisdiction upon the Surrogate to compel payment of a debt (Matter of Hammer, 261 N. Y. 677; Matter of Forrest, 259 N. Y. 553; Matter of Hitchings, 281 App. Div. 202).
If jurisdiction did not exist in the Surrogate to make a decree directing the bank to turn over the moneys represented by its deposit, the decree appealéd from is a nullity and void. Nothing other than a valid decree would afford protection to the bank, and it is not for us to determine whether the bank’s apprehension with respect to double liability should be dispelled by anything less than a valid order.
The present inquiry relates to jurisdiction of the subject matter. The lack thereof can be raised at any time, even on appeal and by the court itself (Matter of Hitchings, supra). If there is no jurisdiction of the subject matter, it is the duty of the court to dismiss the proceeding (Matter of Mathewson, 210 App. Div. 572).
I disagree with the view of the majority that the question becomes one as to whether the decedent owned the chose in action put in terms of the debt of the bank. The ownership of such a chose in action by the estate is conceded by the bank. The issue is as to the power to direct payment of the debt. The chose in action is not property withheld by the bank. The petitioner has that property. The bank owes a debt. The chose in action, while it is property, is not property capable of delivery, and, therefore, sections 205 and 206 would have no application, even if the proceeding was one for the delivery of the chose in action.
Sections 205 and 206 can only provide for the delivery of specific money or personal property, which belongs to the estate (Matter of Hyams, supra), or the value or the proceeds thereof in the event of the disposal of the specific property (Matter of Wilson, 252 N. Y. 155). Clearly, this proceeding is not one to follow the proceeds or obtain the value of any specific property adversely disposed of. The debt from a bank to its depositor is not different from any other debt arising on contract. One owing such a debt does not withhold property capable of delivery. The obligation to pay such a debt may only be enforced in á plenary suit. A direction in a decree in a discovery proceeding to turn over property is enforcible by contempt proceedings. To enforce the payment of a debt in this manner would amount to the anachronism of imprisonment for debt.
The 1939 amendments to sections 205 and 206 added nothing to the power of the Surrogate in respect to directing payment *456of a bank deposit. The amendments had a two-fold purpose: (1) authorizing a testamentary trustee to bring a discovery proceeding, and (2) permitting the bringing in of a third party claiming the right to possession of the distributed property (see Revisioners’ Notes, L. 1939, ch. 343). After the amendments, the proceedings under these sections remained as they always had been, viz. turn-over proceedings. The scope of sections 205 and 206 is not to be enlarged except by legislative direction.
1 find no controlling authority Avhich holds that the sections, as they noAV read, provide for jurisdiction to make a decree to direct a bank to pay a debt represented by a deposit to a petitioner in discovery. Matter of Akin (248 N. Y. 202) does not so hold. That case involved a situation where the son of a decedent had taken moneys belonging to the decedent and deposited them in his own name. The proceeding was against the son, who was under no contractual obligation to the decedent or the estate. The bank was not even a party to the turn-over proceeding in that case. The jurisdictional point discussed there was whether in the absence of an answer the proceeding was inquisitorial, and whether delivery of the property could be ordered in such a case except where it conclusively appeared as a matter of law that the respondent’s claim to title xvas unfounded. When the court was discussing jurisdiction, it was referring to that question. Clearly, the court did not attempt to determine the question of jurisdiction to make an order directing a bank to turn over a deposit in a case where the bank was not even a party to the proceeding.
The only case which appears to have directly referred to the question involved herein is Matter of Jacobsen (178 Misc. 479). That case also involved adverse claims between an estate and a third party as to moneys on deposit in a bank. Of course, the Surrogate had jurisdiction in such proceeding to decide the question of title or ownership of the disputed fund as between such claimants. The Surrogate in that case, however, went further and stated that the deposit was specific property within the meaning of sections 205 and 206 of the Surrogate’s Court Act, a holding which appeared unnecessary to his decision. While acknowledging my great respect for the learned Surrogate who so ruled, I cannot agree with his conclusion that money on deposit with a bank is specific property as between the bank and the depositor. The law is too clearly the other Avay.
The present case involves no situation of adverse claims to a bank deposit. The only question of fact involved in the present *457proceeding was whether Clifford and Trevor were one and the saíne person. The bank conceded that it owed its depositor money. It denied only the power of the Surrogate to direct it to pay the proceeds of the bank deposit to the administrator in a discovery proceeding.
In my opinion the appellant’s contention of lack of jurisdiction was sound, and I vote to reverse the decree and dismiss the proceedings.
Dore, J. P., and Breitel, J., concur with Bebgan, J.; Callahan, J., dissents and votes to reverse the decree and dismiss the proceedings, in opinion.
Decree affirmed, with costs.