Barker v. Harbeck

2 N.Y.S. 425 | N.Y. Sup. Ct. | 1888

Barnard, P. J.

In 1859, Elvira Harbeck deposited with the Bowery Savings-Bank $350. “for Henrietta Barker.” The law in respect to such deposits is now very well settled. Mrs. Harbeck either deposited Henrietta Barker’s money, or constituted herself a trustee of the fund by a completed gift of the money deposited. Martin v. Funk, 75 N. Y. 134; Mabie v. Bailey, 95 N. Y. 206; Young v. Young, 80 N. Y. 482. It is proven that after the deposit remained some years Mrs. Harbeck, the trustee, drew it out, and applied it to her own use. If the gift was complete when the trustee drew out the money, she held it as trustee. Mabie v. Bailey, supra.

The remaining question is one of fact upon the question of the identity oí the plaintiff’s intestate. The deposit was made for Henrietta Barker, as has been stated. Mrs. Barker was a sister of Mrs. Harbeck, and* her name was Harriet. There was no other member of Mrs. Harbeck’s family who was named Barker, and there was none who were named either Harriet, Henrietta, or Harrietta. The evidence established that the deceased, Mrs. Harbeck, declared that Mrs. Barker’s name was Harrietta. The deposit is*for Henrietta. The jury have found in favor of the plaintiff’s intestate, and it is difficult to arrive at any other conclusion. The donor or trustee meant some one, and Mrs. Barker can be selected as the proper donee, although there was a difference as to the fact whether Harriet, Harrietta, or Henrietta. The real donee is quite plainly proven. The verdict of the jury, therefore, rests upon suffir cient evidence, and the judgment should be affirmed, with costs.

Pratt, J., concurs.