Opinion
June, 1935.
Appeal from order granting a motion for summary judgment in an action brought to recover the amount of a deposit in the name of plaintiff's brother in trust for plaintiff. Plaintiff's brother having died, the administrators of his estate make claim for this deposit. In so far as the affidavit of plaintiff states the facts and circumstances of transactions with the decedent, they may not be considered. (Civ. Prac. Act, § 347.) The pleadings and affidavits show there are circumstances concerning the deposit and the maintenance thereof which require a trial for a determination as to whether or not these facts and circumstances will overcome the presumption of fact, the depositor having died, that an absolute trust had been created. ( Matter of Totten, 179 N.Y. 112; Morris v. Sheehan, 234 id. 366.) Order granting summary judgment and judgment entered thereon reversed on the law and facts, with ten dollars costs and disbursements, and motion for summary judgment denied, with ten dollars costs. Lazansky, P.J., Hagarty, Scudder, Tompkins and Johnston, JJ., concur.