#### Charles Berg, as Executor Under the Last Will and Testament of Barbara Koch, Also Known as Babette Koch, Deceased, Plaintiff, *v.*Elizabeth Keber and The Metropolitan Savings Bank, Defendants.

(Supreme Court, New York Special Term,

December 1912.)

Savings banks — action to determine ownership of deposit — evidence.

Where a savings bank account was opened in the name of a depositor since deceased, or “ Elizabeth Berg,” and was *“*payable to either or to the survivor,” and the evidence in an action by the executrix of the depositor to establish ownership to the deposit is wholly insufficient to warrant a finding as to whether “ Elizabeth Berg ” named in the savings bank account was the. mother or niece of decedent, plaintiff is entitled to judgment.

*469Action to establish ownership of a savings bank deposit.

William Brunner, for plaintiff.

Edward J. Rowe (Grant 0. Fox, of counsel), for defendants.

Giegerich, J.

The action is to establish the plaintiff’s alleged ownership of a deposit in the Metropolitan Savings Bank. The account was opened on June 30, 1903, when the decedent, Barbara Koch, deposited with the said savings bank the sum of $1,000. The saving’s bank issued to her a pass-book, which reads as follows: “ Metropolitan Savings Bank, in account with Barbara Koch or Elizabeth Berg.” There are stamped on the left hand page of the pass-book the words *“*payable to either or to the survivor.” The plaintiff testified that such words were not on the pass-book when he saw it in the possession of the husband of the decedent after her death, and Mr. Smith, the receiving teller, testified that he could not swear that the stamp was put on when the account was opened and that there was not any record of such words or similar words on any book or memorandum of the bank. The only signature at the savings- bank in connection with the account is that of the decedent. ¡Neither the signature of Elizabeth Berg nor any information whatever concerning her was ever received by the bank, except that the word *“*mother ” is written in pencil after her name upon the bank’s ledger entry of the account. Mr. Smith, the receiving teller, testified that he could not tell when such pencil notation was made, but he was certain that it was not made at the time of the original entry, because if it had been made then it would have been made in ink. At the time of the opening of the account the family of the decedent consisted of herself, her husband, Jacob Koch, her mother Elizabeth Berg, and her brother’s daughter Elizabeth Berg, now Keber, one of the defendants in this action. The mother, who had lived with Mr. and Mrs. Koch since their marriage, was about eighty years of age when the account was opened. She died a little more than a year afterward, *470on December 27, 1904. The defendant Elizabeth Keber, nee Berg, was twenty years old when the account was opened, and she continued to reside with the decedent until her marriage on January 9, 1906. The decedent died on Hay 3, 1910, in the city and county of Yew York, leaving a last will and testament by which the plaintiff was nominated as sole executor. The will was duly admitted to probate by the Surrogates’ Court of the county of Yew York and letters testamentary were issued to the plaintiff. The account remained intact until April 13, 1905, when the sum of fifty-three dollars and forty cents (being the amount of the interest for the year 1904) was withdrawn by the decedent, and from that time no further withdrawals were made, nor any additions except the interest. So far as the evidence discloses, the decedent called only twice at the savings bank, once when the account was opened and later when the sum of fifty-three dollars and forty cents was withdrawn upon a withdrawal slip' signed by her, and such transactions were the only ones which took place with reference to the account. The plaintiff claims the fund in suit as the executor of the last will and testament of Barbara Koch, otherwise known, as Babette Koch, and the niece, the defendant Elizabeth Keber née Berg, claims it on the ground that she is the Elizabeth Berg mentioned in the pass-book and that she survived her aunt. If the Elizabeth Berg intended was the mother of the decedent, then the fund would belong to the plaintiff, because the decedent survived her mother, as above shown. The evidence, however, is wholly insufficient to warrant a finding as to whether the person named in the savings bank account as Elizabeth Berg was the mother or the niece of the decedent, both of whom, as seen, bore the samé name. Any conclusion upon that point, upon the evidence adduced, would be pure speculation. The provisions of the decedent’s will, made after the account was opened, of course, afford-no evidence of the decedent’s intention at the time the deposit was made. Kelly v. Beers, 194 N. Y. 49, 57. In Schneider v. Schneider, No. 1, 122 App. Div. 774, 779, the court said that “whoever alleges a gift must establish it by satisfactory proof Where the matter is left *471in doubt, upon the whole case, the case must fail.” Applying the principles of that decision to these facts, it is manifest that the claimant, Keber, is not entitled to a judgment for the money. Apart from all this, a determination of the question of the decedent’s intention at the time when the deposit was made is unnecessary to a disposition of the present controversy. It is undisputed that the moneys deposited in the savings bank belonged, at the time when they were deposited, solely to the depositor, and even if it were assumed that the defendant, the niece, was the Elizabeth Berg intended, still the only evidence in support of her claim to joint ownership with the depositor during the lifetime of the latter and to sole ownership upon her death by virtue of survivorship, would be the fact that the account was opened in their joint names and was expressed in the bank book to be payable to either or to the survivor. This evidence is not of itself sufficient to establish the defendant’s claim. Matter of Bolin, 136 N. Y. 177; Grafing v. Irving Sav. Inst., 69 App. Div. 566; Schneider v. Schneider, No. 1, *supra.*In Matter of Bolin, *supra,*the court, at page 179, said: “That the moneys were deposited to the account of *‘*Julia Cody or daughter, Bridget Bolin,’ is not a fact from which any inference of a transfer or of a gift arises. In the absence of other evidence, the transaction simply evidenced a purpose of the depositor of the moneys that they should be drawn out by either of the persons named. The only presumption would be that the depositor so arranged for the purposes of convenience.” In Schneider v. Schneider, No. 1, *supra,*the court, at page 778, said: “ The mere fact of the opening of the account in their joint names, * pay to either or the survivor of either,’ did not in and of itself establish' any such gift. Exclusive control was not given to the defendant by the manner of opening this account, over one-half thereof, or any part thereof, for the plaintiff thereunder retained the right to draw every dollar of the fund and use it for his own purposes.” The decision in Bonnette v. Molloy, reported in the New York Law Journal of November 15, 1912, to which the defendant’s counsel has called my attention. is clearly distinguishable from the case at bar, There, *472when the account was opened, the decedent and his codepositor both signed the usual bank signature book, agreeing to be bound by the rules, regulations and by-laws of the bank. Moreover, that portion of section 144 of the Banking Law cited in the opinion of the court, by which it is declared that “ when a deposit shall be made by any person in the names of such depositor and another person and in form to be paid to either or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons upon the mailing thereof shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both or to the survivor after the death of one of them,” was added to said section by chapter 247 of the Laws of 1907, which is subsequent to the time when the account in suit was opened. It results from the foregoing views that there must be judgment for the plaintiff, with costs against the defendant Keber. Bequest for findings may be submitted by either party, with proof of service on the other side.

Judgment for plaintiff, with costs.