118 Misc. 326 | N.Y. Sup. Ct. | 1922
One Otto Heiner had an account in the Greenwich Savings Bank in his own name. Shortly before his death in January, 1921, the account was changed so that it was in the names of “ Otto Heiner and Mary Leitz, joint account, payable to either or survivor.” The administrator of said Heiner now claims said account as against Mary Leitz. The primary question in the case is whether, in light of the provision of section 249 of the Banking Law, the administrator may show that it was the intention of said Heiner and said Leitz in changing the account to himself and Mary Leitz, as above stated, to enable moneys to be drawn by said Leitz for the accommodation of said Heiner and without any intention on his part to have any interest in the account at any time vested in her. That section of the Banking Law provides:
It is claimed that the legislature had no authority to provide that the making of the deposit in the form stated should be conclusive evidence in any action or proceeding to which either such savings bank or the surviving depositor is a party, of the intention of both depositors to vest title to such deposit and the additions thereto in such survivor. The first part of subdivision 3 of section 249 with reference to the creation of joint tenancies in deposits came into the law by way of an amendment to the Banking Law in 1907 (Laws of 1907, chap. 247). The last paragraph was added in 1914 (Laws of 1914, chap. 369). Before these laws a deposit in the form stated was not regarded as sufficiently establishing the intent of the person making it to create a trust in behalf of another or to give such another joint interest in or owmership of the deposit. Kelly v. Beers, 194 N. Y. 49; citing Matter of Bolin, 136 id. 177. Under the provisions of subdivision 3 of section 249 of the Banking Law, as created by chapter 247 of the Laws of 1907, which does not include the last paragraph with reference to the effect of such a deposit, it was held that there was created a joint tenancy, and, in the absence of other evidence, the survivor would be entitled to the fund. The presumption, however, was rebuttable. Clary v. Fitzgerald, 155 App. Div. 659; affd., 213 N. Y. 696. Then came the amendment of 1914 consisting of the last paragraph. The only case found which considers the question raised by this amendment is Matter of Buchanan, 184 App. Div. 237. Mr. Justice Henry T. Kellogg discusses the question in light of what is said by Wigmore in his book on Evidence (§ 2492), that there cannot be
Construing this statute, not as a rule of evidence which would make it repugnant to judicial function to decide issues of fact, but either as a rule of substantive law or as a limitation of a remedy, the constitutionality of the act cannot be questioned. Although the proof in the case shows, and I shall find, that it was the intention of the decedent in creating the joint account to do it for the sake of convenience and not for the purpose of creating any rights in the defendant, the testimony in that respect cannot avail the plaintiff, and there must be judgment for the defendant. No costs. Submit decision and judgment in accordance with the foregoing.
Judgment accordingly.