#### Sarah E. Elliott, Respondent *v.*The Bank for Savings and William J. Doherty, as Administrator, etc., Appellants.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Jurisdiction — savings bank account — Municipal Courts — executors and administrators.

Where, in an action to recover from a savings bank a deposit of money claimed by plaintiff as a gift *causa mortis*from her deceased sister, plaintiff is permitted to testify over defendant's Objection as to the transaction in which the deceased is alleged to have given her bank-book representing said deposit'to plaintiff, and without her testimony there is no evidence to identify the subject matter of the alleged gift, a judgment in her favor must be reversed.

The action was within the jurisdiction of the Municipal Court, and, under section 42(2) of the Municipal Court Act, it was proper practice to join the administrator of the deceased depositor as a party defendant and determine his rights.

The administrator, against whom a money judgment was not demanded, having appeared generally by attorney and defended, the court had ample jurisdiction on that ground alone to retain him as a party and make an adjudication that the money on deposit was no part of the decedent’s estate and that the administrator had no *bona fide*claim against it.

Appeal by the defendants from a judgment of the¡ Municipal Court of the city of *New*York, borough of Manhattan, ninth district, entered in favor of the plaintiff after a trial by the court without a jury.

Bennett E. Siegelstein, for respondent.

Strong and Cadwalader (Russell Wolfe, of counsel), for appellant Bank for Savings.

James E. Donnelly (T. J. Flynn, of counsel), for appellant William J. Doherty, as administrator.

Page, J.

The action is brought to recover from the defendant bank a deposit of $500 claimed by the plaintiff as a *259gift *mortis causa*from her deceased sister. William J. Doherty as administrator of the sister’s estate was -made a party defendant. ISTo money judgment was demanded against him but he appeared and defended and the formal judgment entered contains an adjudication that the money on deposit in the bank is no part of the decedent’s estate and the administrator has no *bona fide*claim against it.

In the course of the trial the plaintiff was permitted to testify to conversations and transactions had with the deceased. Oh motion the testimony as to conversations was stricken out but that as to the personal transaction allowed, to remain over the objections of counsel. An exception was duly taken. They include the very transaction in which the deceased is alleged to have given the bank-book representing the deposit sued for to the plaintiff. This testimony was improperly received. Griswold v. Hart, 205 N. Y. 384; Clift v. Moses, 112 id. 426; Richardson v. Emmett, 170 id. 412. The only other evidence to substantiate the plaintiff’s claim is the testimony of Catherine Hannah, an aunt of the plaintiff, who says that she witnessed the transaction, but she admits that she did not notice the bankbook which was delivered by the deceased to the plaintiff and did not know whether it was the one sued upon or not. Without the plaintiff’s testimony there was no evidence to identify the subject matter of the gift. The judgment must, therefore, be reversed.

As the case must be retried,> it is necessary to pass upon the further claim of the appellants that the Municipal Court had no jurisdiction to entertain the action in the form-in which it was brought. We are of opinion that there is no merit in this contention. The-action is merely one at law to recover a sum of money. By section 42, subdivision 2, of the Municipal Court Act “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein.” It was proper practice, therefore, to join the administrator as a defendant and determine his rights. Furthermore, by section 187 of the *260Municipal Court Act, the bank if sued alone could have brought in the administrator as a party and interpleaded him with the plaintiff. In this case the plaintiff foresaw this contingency and to save time joined the administrator as an original party. At the trial the plaintiff offered to discontinue as to the administrator, but on demand of the bank he was retained as a party after which he presented his case to the court. The pleadings were oral, so the objection only related to the manner of bringing him into court. As he appeared generally by attorney, the court had ample jurisdiction on that ground alone to retain him as a party and determine his claim.

The judgment appealed, from is reversed and a new trial ordered, with costs to appellants to abide the event.

Seabury and Lehman, J. J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.