38 Misc. 2d 91 | N.Y. Sup. Ct. | 1962
Petitioner is the mother and natural guardian of the three minor children involved herein. As such, she has instituted this proceeding, under the asserted authority of article 8-A of the Personal Property Law (New York Uniform Gifts to Minors Act), wherein she seeks to compel the respondent, her former husband and father of the minors, as custodian of certain savings accounts, to account, be removed, have herself appointed as successor custodian and other relief. The respondent has cross-moved to dismiss the petition for legal insufficiency.
The petition alleges that respondent in or about the year 1956, pursuant to article 8-A of the Personal Property Law of the State of New York, deposited sums of money in excess of $10,000 each in three separate savings accounts in respondent’s own name as custodian respectively for each of the three minor children and the moneys are in such deposit at the present time. The petition further alleges the respondent has failed and refused to make such funds available for the use, benefit and education of said infants and has failed and refused to account for his acts and proceedings as custodian, that such savings accounts are in imminent danger of conversion by respondent to his own use and benefit, and that petitioner should be substituted as successor custodian for said property under the provisions of article 8-A of the Personal Property Law.
Considering first the cross motion of the respondent to dismiss the petition, it is petitioner’s argument that the cross motion is defective since a cross motion to dismiss such a petition as this, can be made only within the limitations of rule 106 of the Rules of Civil Practice, and since that rule does not permit consideration of affidavits, the matter therein stated cannot be considered by the court, and the allegations of the petitioner herein must be treated as true and receive every favorable inference and intendment by the court.
Considering the merits, study of article 8-A, and its background, reveal that before July 1, 1959, it did not apply to gifts of money as alleged by petitioner. Enacted, and effective March 2, 1956 (L. 1956, ch. 35), article 8-A applied only to gifts of securities to minors. The entitlement of the statute is “ Gifts of Securities to Minors ”. This law was in effect through July 1, 1959 when it was repealed and the new statute enacted in its place (L. 1959, ch. 233) which then provided that gifts might be made to minors of any nature, including deposits of money.
It is therefore unquestionable that the original law in effect through 1956 to 1959 applies to securities and not gifts of money, which are alleged by the petitioner. The respondent has shown, uncontradicted by petitioner that the bank accounts with which we are here concerned, contained deposits of money only all made prior to the 1959 statute aforestated. The petition is therefore insufficient as a matter of law.
While petitioner has sought to bar the cross motion on the technical ground urged as hereinbefore discussed, she has nevertheless interposed her cross affidavit arguing the merits of the issues involved. Accordingly, this disposition is made upon the merits as well. Respondent has shown that neither the original
For all of the foregoing reasons, the application is denied upon the law and upon the facts and the petition is dismissed.