#### Margaret Cosgriff, Plaintiff, *v.*The Hudson City Savings Institution, Defendant.

(Supreme Court, Columbia Equity Term,

June, 1898.)

1. Gift — Delivery of savings bank book.

On the clay before her death, á mother took from under the pillow of her bed a savings bank pass-book, gave it to her daughter, told her to take it to the bank, to take the attending physician with her, get the money and keep it for herself, as she was the only one who had ever done anything for her. The daughter took and, kept the book, telling her mother, to wait until to-morrow when she would probably feel better. The" daughter did not demand the money of the bank until after the mother had died. Held, that a valid gift was estabpublish'ed, whether or not strictly *causa mortis.*

2. Same — By-laws of bank — Administrator of donor.

The by-laws of the bank provided that all payments to persons producing the pass-book' should be valid, and discharge the bank, that the possession of the pass-book should be sufficient authority to it for payment and that, on the death of a depositor, the deposit should be paid to the legal representatives on presentation of the book.

Held, that the bank was bound to pay the daughter on her presentation. of the pass-book and that the by-laws did not require the appoint*5ment of, nor justify p'ayment to, an administrator of the donor, to be appointed.

:3. Same — Parties — Interpleader, etc.

The donor left a husband and several children, all of full age, but, so far as appeared, no creditors, and no. person had claimed the deposit of the bank as against the plaintiff.

Held, that, in the absence of any claimants, the bank was not, either under the Banking Law (Laws of 1892, chap. 689, § 115), nor under section 820 of • the Code of Civil Procedure relative to interpleader, or under section 452 of the same Code, entitled to have the next of kin or the administrator of the donor, to be appointed, made parties to the action, as necessary to its complete determination.

Action to recover the amount of a savings bank deposit.

Cadman *&*Peck, for plaintiff.

Collier, Collier *&*Browning, for defendant.

Clearwater, J.

On the afternoon of the 7th day of December, 1897, the mother of the plaintiff, who was upon her death-bed, took ■from under her pillow a pass-book in which was entered deposits made by her in the defendant’s bank, aggregating $1,258.54, gave it to the plaintiff, told her to take it to the bank, taking- the attending ■physician with her, get the money and keep it for herself, as she was the only one who had ever done anything for her. The plaintiff "took the book, told her mother to wait until to-morrow when she would probably feel better. Her mother died the following day and "the plaintiff retained the book down to the trial.

On the 6th day of January, 1898, accbmpanied by her counsel •she went to the defendant’s bank, in the city of Hudson, and presenting an affidavit stating these facts, demanded the amount of the •dep'osit. The defendant refused to pay -unless it was given a bond •of indemnity.

The mother left her surviving, her husband, the plaintiff, another ■daughter-and two "sons, and it was admitted that down to the trial, no person other than the plaintiff had made claim to the deposit or .any part of it.

The mother died intestate, leaving substantially no personal es- . fate, if the gift of the pass-book be valid; she owned real estate of *6the value of $1,200; and it was stated on the trial that she left no known .debts. ■ ,

After the .refusal, and in February, 1898, the plaintiff brought suit. The defendant alleges that it is ready and willing to pay the amount of the deposit to the lawful owner of the pass-book,, but refuses to pay the- plaintiff, because it is advised that the next of kin other than she, may question the validity and legality of the alleged gift, and that creditors of the mother, if any there be, may do-the same. It also alleges a nonjoinder of parties defendant, in that the next of kin other than the plaintiff are necessary parties to the action, and that a proper and complete determination thereof, for its protection, canhot be made until they are interpleaded, and claims that an administrator of the intestate sho.uld be appointed and made defendant.

The Banking Law. provides that in all actions against savings banks' to recover for moneys on deposit therewith, if there be any person not a party to the action who claims the same fund, the court may, on the. petition of the bank, and notice to the plaintiff and such claimant, amend the proceedings by making such claimant a party defendant, and shall thereupon proceed to determine the rights and interests of the several parties. The Banking Law, Laws of 1892r chap. 689, § 115.

It is provided by section 820 of the Code of Civil Procedure that the defendant against whom an action to recover upon a contract, or in ejectment, or to recover a chattel, is pending, may, before-answer upon affidavit that a person not a party makes a demand against him for the same debt or property without .collusion with him, apply to the court upon notice to that person and the adverse party for an order to substitute that person in his place, and to discharge him from liability to either on his paying into court the amount of the debt or delivering the possession of the property, or its value, to such person as the court directs; or upon it appearing that the defendant disputes in whole or in part the liability as-asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants as codefendant with him, and that the court may, in its-discretion, make such order upon such terms as to costs and payment into court or delivery of the possession of the property or its value, as may be just, and 'thereupon the entire controversy may be determined in the one action.

*7It "will be noticed, that hoth section 820 of the Code and section 115. of the Banking Law apply only to cases where there are persons not parties to the action who claim, the same fund. They are not operative here for the reason that down to the trial, no claimant other than the plaintiff had appeared.

Section 820 was intended to be a summary substitute for the more cumbersome procedure by action, but it was not intended to inaugurate any new rule with reference to what should be required to justify an interpleader. It must still he made to appear that the defendant cannot without hazard determine to which of the parties claimant it should pay the subject-matter of the action.

Here, there is no such proof. The plaintiff’s father, brothers and sister are all living and of full age. None of them down to the trial have claimed that the gift to the plaintiff was invalid or obtained by unfair means. Nor has any creditor appeared, nor are any facts stated, which throw a doubt upon the rights of the plaintiff.

As was said in Nassau Bank v. Yandes, 44 Hun, 55, and approved in Stevenson v. New York Life Ins. Co., 10 App Div. 235, it is not necessary simply to establish, in order to justify an interpleader, that some claim is presented, but it is necessary in addition, to prove that such claim has some reasonable foundation, or that there is some reasonable doubt as to whether the defendant would be reasonably safe in the payment of the money.

To the same effect is Roberts v. Vanhorne, 21 App. Div. 369.

The old rule that a stakeholder is entitled to be removed beyond the shadow of a risk, and that in order to entitle him to the protection of the court it is only necessary to establish that suits have been brought or that claimants have threatened to bring them, no longer prevails, and it is now necessary to prove that such claim has some reasonable foundation, and that there exists some reasonable doubt as to whether or not the stakeholder would be reasonably safe in paying over the money. • Mars v. Albany Savings Bank, 64 Hun, 424; S. C., 69 id. 398; Williams v. Aetna Life Insurance Co., 8 N. Y. St. Repr. 567; Nassau Bank v. Yandes, 44 Hun, 58; Feldman v. Grand Lodge, 46 N. Y. St. Repr. 122.

Section 452 of the Code of Civil Procedure provides that the court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights, but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.

*8So far ás the evidence -discloses, this controversy can be fully determined without prejudice to the rights of any one, and without the presence of parties other than the plaintiff and the defendant. It would hardly-be just to compel the plaintiff to have other possible claimants substituted or interpleaded as defendants, for to- do so _ would b^e to invite .attack, and-might be construed as an indication; of doubt as to 'the validity of her title, and . the rule is well settled that the plaintiff in an action at law who seeks nothing but a money judgment cannot be compelled to bring in other parties than those he has chosen to make defendants.. If necessary parties are not present, the defendant may take advantage of the fact, by plea in abatement or may set up an equitable defense showing their absence,' which, if established, will.entitle him to- a nonsuit or a verdict in ■ his favor, but he cannot compel the plaintiff to bring them in, and in such an action the provisions off the Code of Civil Procedure, sections 447-452, as to who may be made parties defendant, and providing for the bringing in of a party whose presence is necessary for a complete determination of the action, or who has an interest in the subject-matter of the action, do not apply. Chapman v. Forbes, 123 N. Y. 532; Rosenberg v. Salomon, 144 id. 92.

■ The bringing in of possible or fancied claimants who have neither á lien nor a legal claim upon the fund is by no means a matter of dis-' cretion, for to unnecessarily interplead them is legal, error. Hilton Bridge Construction Co. v. N. Y. Central *&*Hudson River R. R. Co., 145 N. Y. 390.

The by-laws of the bank provide that all payments to persons producing the pass-book shall be valid and discharge the bank; that the possession of the book shall be sufficient authority to the bank to warrant .any payment made by it; that in case of lost books, the bank will decide as to the person to whom -the payment shall be made, and-without the right of a depositor-of such lost book, to question the correctness-of the payment, and -that on the death of any depositor, the deposit shall be paid to his or her legal representatives, upon presentation of the book It is- urged by the defendant that these by-laws should be so construed as to require the appointment of an administrator of .the estate of the plaintiff’s mother and payment by it to the administrator. The mother, prior to her death, had ceased to be the owner .of the deposit, having given it to the plaintiff the day before, and as to the thing given, the donee -is the legal representative of the donor. By the gift, therefore, the plaintiff became the depositor, her title to the deposit being as good as *9though the transfer from her pother were in writing, although the evidence to support it is not so strongly authenticated, and for this and the reasons heretofore given, the plaintiff cannot be compelled to have an administrator appointed and to ask that the bank pay the deposit to the administrator, for that' would be to admit that her mother, at the time of her death, was the owner of the deposit, notwithstanding the gift.

The pass-book imports a liability to the depositor and constituted a contract between her and the bank to repay the moneys deposited at such time, and to such person as she should direct, and while the duty devolves upon the officers of the bank to exercise care and active diligence in order that depositors may be protected from fraud and larceny, and they are not absolved, if at the time of payment, any fact or circumstance be brought to their knowledge, calculated to excite the suspicion of and inquiry by an ordinarily careful man where they fail to make inquiry or to exercise at least ordinary care and diligence, they cannot insist upon a bond of indemnity or upon being made secure beyond the peradventure of doubt or risk.

If the bank when sued desired the interpleader of others as real or possible clamaints of the deposit by a title hostile to that of the plaintiff, it should have assumed the risk and labpr of bringing them in; it cannot impose that burden and hazard on the plaintiff, who rests upon the strength of her own title, denying the existence or validity of any other. While the province of savings banks is beneficent, affording to people of moderate means an' opportunity to invest small savings at interest as the money can be spared, and they are entitled to such indulgence as courts can grant without infringing upon the rights of others, they are not exempt from the operation of the ordinary rules of law. The defendant probably has been put to trouble and expense in defending this action, but it stands as ■ any other custodian of property which assumes and tries to retain the custody as against the true owner without lawful authority.

I am of the opinion that the testimony established a perfect gift, whether strictly *causa mortis*it is not necessary to determine, that the plaintiff became, and at the time of the demand upon the defendant, was the owner of the deposit. Judgment is, therefore, directed in her favor for the amount of the deposit,, with interest and costs.

Judgment for plaintiff, with interest and costs.