56 A.D.2d 624 | N.Y. App. Div. | 1977
In an action to recover amounts withdrawn from a joint savings account, defendant appeals from a judgment of the Supreme Court, Queens County, dated December 9, 1975, which is in favor of plaintiff in the principal amount of $14,035.66, together with interest, costs and disbursements, after a nonjury trial. Judgment modified, on the law, without costs or disbursements, by reducing the principal amount thereof to $7,017.83. As so modified, judgment affirmed, and action remanded to Trial Term for the entry of an appropriate amended judgment. The findings of fact are affirmed. The parties’ mother set up a joint savings account with plaintiff, and then withdrew the entire balance, less $10, therefrom and deposited it into a new joint bank account in the names of herself and the defendant. As a joint tenant of the first account,' plaintiff became entitled to a moiety of the balance in the account during the lifetime of the mother. However, the mother had the legal power to withdraw her moiety from the account, and to thereby terminate plaintiff’s survivorship right therein. Thus, plaintiff is the rightful owner of one half of said balance, and defendant is the rightful owner of the other half, by survivorship (see Matter of Kleinberg v Heller, 38 NY2d 836). The withdrawn money having been traced by the court to the second account, and having been withdrawn therefrom by defendant, defendant is liable to plaintiff for plaintiff’s moiety of the first account. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.
