12 Mills Surr. 550 | N.Y. Sur. Ct. | 1914
The petitioner claims that the respondent has in his possession a bank book in the name of the decedent, belonging to her, and evidencing deposits in the Dry Dock Savings Institution which he contends are her property. The respondent in his answer admits the possession of the book in question, but claims that the item of $400 shown by it to have been credited to the decedent on June 17,1914, belonged to him, and he asks that the proceeding be dismissed, or, if not dismissed, that an order be entered which will protect his interests.
The answer, therefore, alleges title to, and a right to the possession of, at least a part of the property involved in the inquiry. In the recent revision of chapter 18 of the Code of
The contention of the respondent is that on the 16th of June, 1914, or thereabouts, he drew a check, which is in evidence, to the order of the Dry Dock Savings Institution in the sum of $400; that on the day that he drew the check, or the day thereafter, the decedent, who was his sister, called, and he requested her to deposit this check to his account in the Dry Dock Savings Institution; that the decedent went to the safe in the office of the respondent, took out a bank book, went to the bank and made the deposit, this being the deposit of $400 shown by the bank book to have been made on June 17, 1914; that after the deposit was made she discovered that she had inadvertently deposited the check to her own account instead of to the account of the respondent, she having an account in the same institution; that upon her return to the office she told the respondent about the matter and offered to have it corrected, and that it was understood between them that the error would be corrected the next time she went to the bank.
Upon the hearing counsel for the administrator examined the respondent as to personal transactions with the decedent to which the respondent could not have testified, in his own behalf, over objection (Code Civ. Pro., § 829), and the respondent testified substantially to the facts above stated.
Counsel agree that the burden of proving that the $400 deposit in the name of Elsie A. Dorf (the decedent’s name prior to her marriage) is the property of the respondent rests upon him.
It is well settled in this state that where testimony of a claimant against an estate is given as to personal transactions
No memorandum of the error was made on the stub of his-check book; no entry of any kind was made by his bookkeeeper or by himself in his books, although he kept regular books of account. It is true the check with which the deposit was made-was made payable directly to the bank, but I do not put the weight on that fact which the respondent urges that it merits. It was intended that the check be deposited in the Dry Dock Savings Institution, and while no doubt it would have been a. better record of the transaction, as contended for by the administrator, if the check had been made to the decedent and then
His evidence is corroborated in part by the testimony of one witness, but this witness is his sister-in-law; she resides in his house and is in his employ, and I feel she cannot be said to be entirely disinterested. The fact that the respondent is in the possession of the bank book might, perhaps, be regarded as an element of corroboration of his testimony, but in this case it is of no weight, because he himself admits that it was the custom of himself, his mother and his sister, the decedent, to keep their bank books together in his safe in the office.
As against the testimony of the respondent, a number of witnesses were produced, two of whom are not related to- the parties and have not been shown to be interested in any way. The latter testify that on or about the day of the funeral, during a conversation between the husband and the respondent in which the husband requested a loan from the respondent to assist him in paying the funeral expenses of his deceased wife, the respondent said in words or in effect that the decedent had $500 in the bank. The amount in the Dry Stock Savings Institution, which is the only bank at the present time having any deposits of the decedent, so far as the evidence discloses, was $500, plus interest of $35 added on July 1, 1914.
The deposit book of the decedent in the Dry Dock Savings Institution shows that on January 23, 1914, she drew from this bank $400. There is no proof of what she did with this amount. Her husband testifies that he had no knowledge of the withdrawal or the expenditure thereof, and the respondent denied that he had received the $400 in question from her. It also appears from her bank book that she made comparatively frequent deposits in this bank, whereas the book of the respondent shows that he made a deposit on December 21, 1910, on December 14, 1911, and no deposit since that time. Again,
From all of the evidence I am of the opinion that the respondent has failed to sustain the burden of proof in this matter and that the bank book and the deposits therein noted were the property of the decedent, and that her personal representative is entitled to the possession of the bank book and of the funds which it evidences are. on deposit in the Dry Dock Savings Institution, and I so determine. Costs to the administrator to be taxed.
Decreed accordingly.