Majority
p. 930Sarah B. Gammond, Resp’t. v. The Bowery Savings Bank, App’lt. (City Court of New York, General Term, Filed October 31, 1889.)
Headnote
Savings banks — Title to deposit mat pass bt gift without wbitten ORDER.The contract of deposit provided that drafts could he made personally or by the depositor's order in writing or by letter o'f attorney. Held, that this did not prevent the depositor from passing his demand against the bank by assignment, gift or bequest and that the donee had title to the fund without a written order or power of attorney.
Michael Galligan had to his credit on deposit with the defendant January 1, 1877, $440, represented by a deposit book, containing among other regulations the following: “ Drafts may be made personally, or by the order in writing of the depositor, or by letters of attorney, duly authenticated.” Thereafter Galligan made an absolute gift of the money to the plaintiff, accompanied by the delivery of the bank-book, the evidence of title, and subsequently died. The present action is by the plaintiff, the donee of the gift, to recover the deposit. It was satisfactorily proved that the gift was made with the intent of passing title absolutely, and that the donee through her attorney had demanded the money and offered to surrender the book. The defendant figured up the accrued interest but refused to pay over the money except on the demand of the depositor. The plaintiff thereupon brought this action to recover the amount of the deposit and the accrued interest. The main defense urged was that under the rule before referred to no legal demand could be made for the money except by the depositor personally or by letter of attorney duly authenticated. The trial judge ordered judgment for $795.46, the amount of the deposits with interest, and from such direction the defendant appeals.
Carlisle Norwood, for app’lt; C. G. Macy, for resp’t.
The reasons assigned by the trial judge, in his opinion, sufficiently warrant the direction made. As he says; “ The .alleged contract of deposit does not limit nor impair the absolute right of the depositor as a creditor of the defendant,” and that “ it refers only to the proof upon which the depositor may require a payment to himself or to another, at his request.” It aid not prevent the creditor from passing the demand by general or specific assignment, by gift or bequest, or by operation of law, such as bankruptcy proceedings or the appointment of a receiver, in the lifetime of the creditor, or by the appointment of an administrator
p. 931
or qualification, of an executor after death. In either of these cases, the fund would pass to and be assets in the hands of the assignee, donee, beneficiary or legal representative, on whom the title devolved, see Penfield v. Thayer, 2 E. D. Smith, 305, without a written order or power of attorney signed by the depositor and duly authenticated, according to the rules of the bank. For these reasons the plaintiff acquired good title to the fund, and the judgment rendered awarding it to her must be affirmed, with costs.
McAdam, Ch. J. and Holme, J., concur.