Herpe v. Herpe

151 N.Y.S. 503 | N.Y. App. Term. | 1915

Guy, J.

The action was brought to recover the amount of a savings bank deposit made on July sixth last by “I. Herpe in trust for Jennie Herpe.”

The answer offered to- pay the deposit into court or to surrender it upon being discharged of all liability therefrom.

No interpleader was had nor was there any payment into court.

On the trial defendant Herpe’s counsel in his behalf withdrew his answer. Plaintiff testified that the deposit her husband made was her money; that her mother gave it to her; that it represented her savings.

Assuming that plaintiff may have an action in equity to establish a trust in her favor, she has none at law. Hemmerich v. Union Dime Savings Inst., 205 N. Y. 367, 371. Moreover, the Municipal Court has no jurisdiction of an equitable action. Consent does not and cannot confer jurisdiction of the subject-matter of an action beyond the Municipal Court jurisdiction.

Judgment reversed, with costs, and complaint dismissed, with costs to the appellant, without prejudice to an action in equity.

Bijur and G-avegan, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.