116 N.Y.S. 228 | N.Y. App. Div. | 1909
Lead Opinion
I am of the opinion that the judgment should be reversed upon the ground that jurisdiction of the defendant Patrick Murphy was not acquired by the service by publication.
The balance on deposit at the time the action was brought was the sum of $3,844.44. Prior to the opening of this joint account the plaintiff had the sum of $1,223.08 on deposit to her credit with the appellant. On the 29tli day of April, 1891, after plaintiff married the defendant Patrick Murphy, they both went to the bank, and she authorized the transfer of her individual account to their joint account. She testified upon the trial that she supposed that either of them, on the production of the bank book, could draw on the account; but she also testified that she knew that her money was transferred to the joint account, and that the signatures of both herself and her husband would be required when money was to be withdrawn.
The president of the appellant was permitted to testify, without objection • or exception, that although he did not superintend the transfer of the account, he knew from the records of the bank that it was changed to a joint account, and that the signatures of both were required to withdraw funds. It would seem that additional deposits to the credit of this account were made, but it does not appear that any money was withdrawn.
In these circumstances, it is evident that the defendant Patrick Murphy had an apparent interest in this account, and that he should be a party to any action by which the appellant is to be required to pay it over, in order that it may be protected against a subsequent action by him in which other facts may be proved tending to establish that he has an interest in this fund. He was, therefore, properly joined as a party defendant, and before trial or judgment service of process should be made upon him by which he will be foreclosed from asserting any claim against the appellant on account of the fund.
I think that the moving papers satisfactorily show that, in the
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, P. J., MoLaughlin and Clarke, JJ., concurred; Houghton, J., dissented.
Dissenting Opinion
I think this action is properly brought, and that the order of publication against Patrick Murphy properly dispensed with mailing of notice to him.
It is undisputed that at the time the plaintiff was married to the defendant Patrick she had on deposit with the defendant savings bank $1,263 of the money now on deposit, and that she herself made all the deposits from her own money thereafter. It stands, therefore, upon the undisputed proof that notwithstanding the form of the deposit she is the owner of all the money, and that she at all times has been in sole possession of the bank book.
The deposit being in the name of Patrick and Mary Murphy, it was unimportant that on the bank signature book an official had written it was not to be drawn except upon the signatures of both. The form of the deposit would indicate on its face that both must draw, and that one could not do it alone. Notwithstanding this fact, it appearing that all the money belonged to the plaintiff, she has the right to do it as against a formal joint depositor.
The recent case of Kelly v. Beers (194 N. Y. 49) is express authority for the proposition that the actual owner of money on deposit in a savings bank, notwithstanding the particular form in which the deposit is made, is entitled to the money on proving ownership, and also is express authority for the proposition that an equitable action may be maintained to establish ownership. Such is the form of the present action, and the only persons interested in the deposit are parties thereto. I do not understand the defendant bank to claim that such an action is not maintainable. Such a proposition arose only in this court. That it is maintainable seems
Section 438, subdivision 5, of the Code of Civil Procedure provides that a defendant may he brought into court by substituted service “ where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property.” While technically the relation between a bank and its depositor is that of debtor and creditor, in a broader sense the bank holds the money for the depositor. Especially is this true oí a savings bank. 1 think a deposit of a specific amount of money in a bank can fairly be said to be a fund, the title to which, or an interest in which, can be the subject of litigation and adjudication. If so, it comes within the provisions of the Code permitting substituted service upon a defendant who is sought to be excluded therefrom, or his right therein defined or limited.
Orders of publication were held improper in Bryan v. University Pub. Co. of N. Y. (112 N. Y. 382) and in Von Hesse v. Mackaye (55 Hun, 365; affd., 121 N. Y. 694) on the ground that the personal property in controversy was not within this State.
In Chesley v. Morton (9 App. Div. 461) the order was upheld on the ground that the action partook of the nature of one in rem.
The plaintiff asks that it be adjudged that she is the sole and absolute owner of the deposit, and that the claim of the defendant Patrick thereto, if any, be determined. She also asks that if it be determined that she is the sole owner and that Patrick has no interest therein, that it be adjudged that the bank pay the same to her. It seems to me that such an action is one to determine a claim to personal property situated within the State. It would be a very monstrous failure of justice, not only in the present case, but in many similar ones, if the actual owner of a joint deposit could not have it adjudged that he was the owner, where the joint depositor
If the action is one, as it seems to me it is, in which an order of }>ublication against a non-resident defendant was proper, then I think the judge granting the order of publication was entirely right in dispensing with mailing. Section 440 of the Code prescribes that if the judge granting the order be satisfied from the affidavits that the plaintiff cannot with reasonable diligence ascertain a place or places where the defendant would probably receive matter transmitted through the post office, he may dispense witli the deposit of any papers therein. The affidavits show that the defendant Patrick disappeared in 1898; that plaintiff, although she heard from him on three or four occasions, had not heard about him since June, 1906, when some third person, at Vancouver, B. C., wrote her that her husband Patrick at that time was at Cleary City, Fairbanks, Alaska. The order of publication was granted in May, 1908. The affidavits show that every reasonable effort was made and all possible inquiries instituted to ascertain whether or not service could be made upon him in this State, and service was found impossible. Thereupon one of plaintiff’s attorneys wrote to the postmaster at Cleary City and at Vancouver, B. C., making inquiries concerning Patrick. The postmaster at Vancouver replied that he could not give the information asked for, and the postmaster at Cleary City did not reply at all. His sister had not heard from him and knew nothing of him, except some four years prior she had received a letter from him from some place in Alaska, at what place she did not know, and she believed that he was in the region known as the Klondike, in British America or Alaska. Upon this proof the judge granting the order of publication was entirely warranted in coming to the conclusion that it would be a futile thing to require mailing of a notice. In Kennedy v. Lamb (182 N. Y. 228) the nature of the evidence required to be presented to the judge granting an order of publication is commented upon, and it is there held that any evidence having a legal tendency to show compliance with the statute, even if inconclusive, would warrant the exercise of judgment and thus confer jurisdiction to make the order, and that even if the judge reached a wrong conclusion upon the facts presented, so that his order would be set aside on direct attack by motion to vacate, still
Confessedly sufficient facts were presented to the judge granting the order of publication in the present case to confer jurisdiction upon him to make an order of publication. The only complaint respecting the order is that it dispensed with mailing. Having jurisdiction and having some facts upon which he could properly adjudge that if was improbable that the defendant would receive notice by mail, the order cannot be said to be void.
The defendant bank does not claim to be the owner of the money. All it desires is that it be protected against payment a second time. I think the judgment gives such protection and I, therefore, vote to affirm it.
Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.