246 A.D. 851 | N.Y. App. Div. | 1936
Action by an executor of a decedent to impress a trust upon a savings bank account of $2,000 in the name of Sophie Stivelman, for the benefit of the estate of the deceased. Judgment for the plaintiff reversed on the law and the facts, with costs, and judgment directed for the appellant Sophie Stivelman, dismissing the complaint on the merits, with costs. The credible evidence, especially that from disinterested witnesses, discloses that the $2,000 deposited with the congregation as part of the security for the deceased, Hyman Silberman, as sexton thereof, was the money of Sophie Stivelman. She never parted with the title thereto. She turned it over to the congregation in her own name, for use in connection with the payment of the prior sexton’s security, and she in turn allowed the same to be used — still retaining it in her own name — as part of a total of $3,000 security required of her brother in order to enable him to obtain the position of sexton. This view ensues from the testimony, particularly of the witnesses Abkowitz and Rohrlieh, and obtains independently of the minute book and the cash book of the congregation. The entries in those books, however, reinforce the