Opinion
September 11, 1963
George E. Mulry for petitioner.
Speno, Goldberg, Moore Margules for Vera Jensen, respondent.
Petitioner, by order to show cause, seeks an order directing the respondent bank to pay petitioner the amount on deposit with it in the joint account of petitioner and respondent wife, which account has been blocked pursuant to section 134 Banking of the Banking Law.
The preliminary question raised by this court upon its own volition is whether it may assume jurisdiction of the subject controversy, absent a plenary action. There is no authority for the commencement of an action or special proceeding in the manner undertaken here. An action is commenced by the service of a summons (Civ. Prac. Act, § 218, now CPLR, § 304) unless the controversy is submitted in accordance with the provisions of sections 218-a, 218-b and 218-c of the Civil Practice Act, now section 3031 of the Civil Practice Law and Rules, which procedure was not adhered to in the instant matter.
The Civil Practice Law and Rules authorizes prosecutions in the form of special proceedings only where authorized (CPLR, § 103, subd. [c]) and there appears to be no such authorization for the proceeding which the petitioner attempts to institute herein.
There is no authority for the parties to chart their own course as to procedure so as to eliminate the necessity of a plenary action, and thereby obtain a preference in the disposition of their controversy. The motion is denied and the petition is dismissed.