Opinion
May 5, 1926.
Appeal from Supreme Court of Onondaga County.
W.J. W.E. McClusky [ W.E. McClusky of counsel], for the appellants.
Charles V. Byrne, for the respondent.
Present — HUBBS, P.J., CLARK, SEARS, CROUCH and TAYLOR, JJ.
The appeal is from an order dismissing the complaint for insufficiency upon a motion made at the trial, and from the judgment entered thereon. The complaint in substance alleges that Patrick B. Lane deposited $5,000 of his own money in the Syracuse Savings Bank in the joint name of himself and defendant, either or survivor to draw; that the deposit was made in that form, not as a gift but for convenience only; that defendant fraudulently and without Lane's knowledge and consent drew the money out of the bank, appropriated it to his own use and refused to return it. The action was brought by Lane as plaintiff in his lifetime. After his death the present plaintiffs were duly substituted. The decision seems to have rested on section 249 Banking of the Banking Law. We are of the opinion that as between the parties themselves, the presumption, if any, arising from the making of the deposit in the form mentioned is not conclusive as to the ownership of the fund; and that the death of Lane after the commencement of the action in no wise changed the cause of action. There seems to be no direct authority on the question, but see dicta in Havens v. Havens ( 126 Misc. 155, 170; affd., 215 App. Div. 756) and in Heiner v. Greenwich Savings Bank ( 118 Misc. 326, 328).
The judgment and order should be reversed on the law and a new trial granted, with costs to the appellants to abide the event.
All concur.
Judgment and order reversed on the law, and new trial granted, with costs to appellants to abide event.