Hallenbeck v. Hallenbeck

89 N.Y.S. 780 | N.Y. Sup. Ct. | 1904

Herrick, J.

I attach no importance in this case to the language of the instrument signed by Mrs. Huldah Van Aernam, by which the bank was authorized to add the name of Huldah B. Hallenbeck as an owner and creditor with Mrs. Huldah Van Aernam of the moneys theretofore deposited by her in the defendant bank.

The evidence shows that upon visiting the bank, Mrs. Van Aernam requested the teller “ To add the name of her niece to the pass-book, so that either or the survivor of either could draw the moneys.” That he thereupon produced a printed form which contained the words “As owner and creditor with me,” which he filled out and asked her to sign.

There is no evidence in the case that she asked the bank officer to constitute the plaintiff a joint owner and creditor with her; those words were words furnished to her by the bank officer by means of the printed form, and under the circumstances, cannot be construed as evincing a deliberate purpose and intent on the part of Mrs. Van Aernam to make the plaintiff a co or joint owner and creditor with her, of the moneys theretofore deposited by her in the bank.

I have considered at some length the law in cases of this character, in the case of Kelly v. Home Savings Bank, 44 Misc. Rep. 102, which renders unnecessary any lengthy discussion of this case.

.The facts show that Huldah Van Aernam never at any time surrendered dominion and control over the moneys in question.

The words “ either to draw,” coupled with the possession of the bank-book gave her entire control over the moneys upon deposit; she could withdraw them at any time, and, without possession of the bank-book, the words “ either to draw ” gave the plaintiff, Huldah B. Hallenbeck, no control or dominion over such moneys.

Under the rules of the bank, which were printed in the pass-book, no money could be drawn therefrom except upon the presentation of the pass-book, so that by the retention of the pass-book by Mrs. Van Aernam, she not only remained in control and dominion of the money, but she also prevented the plaintiff drawing any such .money except as permitted by her- by giving to the plaintiff, from time to time, possession, of tlm pass-book for that purpose. Keeping control of the pass-book kept control of the money, and stripped the transaction of that “ quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title.” Beaver v. Beaver, 117 N. Y. 421.

Within the authorities referred to in the case of Kelly v. Home Savings Bank, the gift here was- not a completed act.

There was only the intention, unaccompanied by such acts as would have carried that intention into effect.

The complaint of the plaintiff, must, therefore, he dismissed.

Complaint dismissed.,