Wingrove v. German Savings Bank

37 N.Y.S. 1092 | N.Y. App. Div. | 1896

Van Brunt, P. J.:

This action was brought to recover the amount of a deposit alleged to have been made by one Henry Gebhard, deceased, in the defendant’s bank in the name of “ Henry Gebhard, in trust for Louise Unger,” a pass book for which was issued by the-defendant. After Gebhard’s death the plaintiff demanded of the defendant the amount of the deposit.' So did the administrator of the estate of Gebhard, .the said estate being insolvent. • Upon these facts the defendant made a motion for an order to substitute the administrator of Gebhard as defendant in the action, and to discharge the bank from all liability to the plaintiff or to the administrator upon its paying the amount of the deposit into court. This motion was granted, and an Order was entered on the 2lst of December, 1895, directing the deposit by the defendant with .the clerk of the court . before the 10th day of January, 1896, of the sum of $1,000, and that upon making such deposit the administrator of Gebhard should ' be substituted as sole defendant in place of the then defendant. On the 8th of January, 1896, the defendant obtained an order to show cause why there should not be added to the order thereinbefore entered a provision requiring the plaintiff to deliver to the defendant the pass book issued by the defendant and mentioned in the , complaint. This was opposed by the plaintiff and heard by another ■ judge; and on the 23d of January, 1896, an order was entered amending the order of the twenty-first of December, by further ordering, that the plaintiff deposit the pass book mentioned in the complaint with the clerk of the court within two days after the service upon her attorney of a copy of the order with notice of the entry thereof. From that order the present appeal is taken.

It is difficult to see upon' what theory or basis the court could amend an order made at. a previous court held by another judge in the manner attempted,to be done here! No such relief appears to. have been asked for by the original order, and the judge granting the original motion is made to decide a question which never was presented to him. While it may be true that an order may he amended to conform to a decision, it is somewhat difficult to understand how an order can be amended so as to make the court rule upon a question which has never been presented to' it. We do not hereby mean to intimate that even if an independent .application had been made, it should have been granted.

We think the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barrett, Rumsev, Williams and Patterson, JJ., concurred..

i Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.