South Shore Amusements, Inc. main*145tained a bank account with the National Bank of North America (Bank). In addition, in September, 1974, South Shore had taken out a loan in the principal amount of $14,000 from the Bank and was delinquent in repayment. The Industrial Commissioner of the State of New York (Commissioner) had also filed two warrants against South Shore for taxes due under the New York State Unemployment Insurance Law in the office of the Clerk of Suffolk County on June 16 and August 21, 1975. The filing of these warrants with the clerk resulted in their becoming judgments and collectible as such.
On September 29, 1975, the Commissioner served a tax compliance agent’s levy pursuant to CPLR 5232 (subd [a]) upon the Bank, based on his information that South Shore had about $1,450 on deposit with the Bank.
On October 9, 1975, the Commissioner demanded payment from the Bank, to which the Bank, in a letter of even date, responded that the balance in that account had been applied to reduce the indebtedness outstanding from South Shore to the Bank. The Commissioner then proceeded at Special Term for an order directing the Bank to release these funds to him as a judgment creditor (CPLR 5225, subd [b]; 5227). Special Term granted the petition. I would reverse.
The Bank account, which South Shore had, established it as the creditor of the Bank to the extent of the moneys deposited by it in the account (Brigham v McCabe, 20 NY2d 525, 530-531).
Section 151 of the Debtor and Creditor Law provides in pertinent part that: "Every debtor [in this case, the Bank] shall have the right upon * * * the issuance of any execution against any of the property of * * * a creditor [in this case, South Shore], to set off and apply against any indebtedness, whether matured or unmatured, of such creditor to such debtor, any amount owing from such debtor to such creditor, at or at any time after, the happening of any 'of the above mentioned events, and the aforesaid right of setoff may be exercised by such debtor against such creditor * * * notwithstanding the fact that such right of set off shall not have been exercised by such debtor prior to the making, filing or issuance, or service upon such debtor of, or of notice of * * * issuance of execution”.
The language of the statute clearly allows for a setoff by the debtor Bank any time after issuance of execution, which would also include any time after service of the levy pursuant *146to CPLR 5232 (subd [a]). To hold otherwise would be to nullify the benefit of section 151, since the first effective notice of the issuance of an execution is by service of that execution upon the garnishee (CPLR 5232, subd [a]).
In the case at bar, the filing of the warrants became the equivalent of entry of judgment against South Shore. The Commissioner then served a levy upon the Bank, which was the first opportunity the Bank had to exercise its options under section 151. The affirmance by this court of the granting of a judgment in favor of the Commissioner has operated, in my opinion, to nullify section 151.
Accordingly, the judgment of the Supreme Court, New York County, entered March 29, 1976 granting judgment in favor of the Commissioner, should be reversed on the law and the petition dismissed.
Stevens, P. J., Markewich and Kupferman, JJ., concur with Capozzoli, J.; Lane, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on March 29, 1976, affirmed. Petitioner-respondent shall recover of respondent-appellant $60 costs and disbursements of this appeal.