Harvey M. Lifset for judgment creditor.
Martin L. Stein and
Charles J. Colgan for Manufacturers Trust Company.
fund to which the applicant is entitled until the application is denied. An assignee of such an unsuccessful applicant is in no better position than the assignee of a person to whom a license was issued but who subsequently surrendered such license, thus entitling him to a refund. The arguments and authorities that support one situation are just as cogent as those which support the other. These proceedings, therefore, must be deemed to fall within the authority of
Palmer v. Tremaine (259 App. Div. 951,
supra) and the line of cases in point therewith. The two cases to the contrary cited in Appendix A of Manufacturers' brief (
Williams & Co. v. Ace Restaurant, N. Y. L. J., June 28, 1939, p. 2984, col. 2;
Montrose Ind. Bank v. Brennan, N. Y. L. J., Nov. 29, 1939, p. 1865, col. 1) were both Supreme Court Special Term opinions. Both have been in effect overruled by the Appellate Division, Third Department (
Palmer v. Tremaine,
supra;
Atlas v. Casa Cubana,
supra). The motion of the judgment creditor, Capitol, is, therefore, granted and the motion of Manufacturers is in all respects denied. An order directing the Comptroller of the State of New York to pay to Capitol the sum of $545.08 out of the funds held by him to the credit of the judgment debtor herein may be entered. No costs.