Opinion
April 23, 1963
Order, entered on December 4, 1962, granting respondent's cross motion to dismiss the petition, unanimously affirmed, with $20 costs and disbursements to respondent. We do not concur in the holding of Special Term that the bank accounts constitute Totten Trusts and at this time it is not necessary to pass upon title to the accounts. Assuming the accounts are within the purview of the New York Uniform Gifts to Minors Act (Personal Property Law, art. 8-A), the petition fails to allege facts warranting the relief sought. On a proper petition the court may direct the expenditure of custodial property necessary for the minors' support, maintenance or education (Personal Property Law, § 266, subd. 3), and for cause shown the custodian may be removed (§ 267, subd. 5). Apart from the conclusory allegation that the respondent has threatened to remove the custodial funds and convert them, the petition fails to allege facts which would warrant the respondent's removal as custodian. This disposition is without prejudice to any other action or proceeding appellant may be advised to bring.
Concur — Breitel, J.P., Valente, McNally, Eager and Bastow, JJ.