Barker v. Harbeck — 17 N.Y. St. Rep. 678

Majority

p. 678

Daniel Barker as Adm’r, etc., of Harriet Barker, Deceased, Resp’t, v. John H. Harbeck et al., Ex’rs, etc., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

1. Gift—Deposit of money in sayings bank—Effect of.

In 1859 Elvira Harbeck deposited with the Bowery Savings Bank $350 “ for Henrietta Barker.'1 Held, that Mrs. Harbeck either deposited Henrietta Barker’s money or constituted herself a trustee of the fund by a complete gift of the money deposited.

p. 679

2. —Same—Trustee—When depositor becomes trustee.

After the deposit remained some years, Mrs. Harbeck drew it out and . applied it to her own use. Held, that she drew it out as trustee. That the money so drawn out could be recovered from the estate of Mrs. Harbeck by the personal representative of Henrietta Barker.

3. Same—Evidence—Sufficiency of.

Harriet Barker was a sister of Mrs, Harbeck. There was no other member of her family who was named Barker and none who were named either Harriet or Henrietta, or Harrietta. It was shown that Mrs. Harbeck had ■declared that Mrs. Barker’s name was Harrietta. Held, that the verdict that the deposit was for Mrs. Harriet Barker rested upon sufficient ■evidence.

Appeal from a judgment in favor of the plaintiff entered upon a verdict of a jury, rendered at the Kings county circuit and from an order denying a motion for a new trial upon the case.

The action was brought by the plaintiff, as administrator, ■etc., of Harriet Barker, deceased, against the defendants, as executors, etc., of Elvira Harbeck, deceased, to recover the amount of a deposit in the Bowery Savings Bank, made by defendant’s testatrix and subsequently withdrawn by .her.

The deposit was made in 1859, in the name of Elvira Harbeck, the testatrix, and it was withdrawn by her in July, 1884.

Fisher & Voltz, for resp’t; Wing, Shoudy & Putnam, for app’lts.

In 1859 Elvira Harbeck desposited with the Bowery Saving Bank $350, “for Henrietta Barker.” The law in respect to such deposits is now very well settled.

Mrs. Harbeck either deposited Henrietta Barker’s money or constituted herself a trustee of the fund by a completed gift of the money deposited. Martin v. Funk, 75 N. Y., 134 ; Mabie v.. Bailey. 95 N, Y., 206 ; Young v. Young, 80 N. Y., 432 .

It isproven that after the deposit remained some years, Mrs. Harbeck the trustee drew it out and applied it to her own use. If the gift was complete when the trustee drew out the money she held it as trustee. Mabie v. Bailey, supra.

The remaining question is one of fact upon the question of the indentity of the plaintiff intestate. The deposit was made for Henrietta Barker as has been stated. Mrs. Barker was a sister of Mrs. Harbeck and her name was Harriet. There was no other member of Mrs. Harbeck’s family who was named Barker and there was none who were named •either Harriet or Henrietta or Harrietta. The evidence established that the deceased Mrs. Harbeck declared that Mrs. Barkers name was Harrietta. The deposit is for Henrietta.

p. 680

The jury have found in favor of the plaintiff’s intestate and it is difficult to arrive at any other conclusion. The donor or trustee meant some one and Mrs. Barker can be selected as the proper donee although there was a difference as to the fact whether Harriet, Harriótta or Henrietta. The real donee is quite plainly proven.

The verdict of the jury therefore rests upon sufficient evidence and the judgment should be affirmed, with costs.

Pratt, and Dyeman, JJ., concur.