Kane v. Fox , 52 N.Y.S.2d 230 ( 1945 )

Appeal by plaintiffs from an order which, upon reargument, granted a motion by defendant for judgment on the pleadings, and dismissed the amended complaint, in an action to establish and enforce an alleged oral agreement to hold certain moneys on deposit in two savings bank accounts in statutory joint account form (Banking Law, § 239, subd. 3) in the name of one Emma Kane, since deceased, and the defendant, payable to either or the survivor. Order unanimously affirmed, with ten dollars costs and disbursements. This court construes the allegations of the complaint as indicating joint accounts in the statutory form. It construes the allegations of paragraphs “ Seventeenth ” and “ Eighteenth ” as sufficiently broad in favor of the plaintiffs to constitute an allegation of an oral agreement on the part of the deceased and the defendant, made after the opening of the joint accounts, that the balance in the banks at the date of death should be divided among plaintiffs and defendant, nevertheless, under the decisions of the Court of Appeals, since the controversy relates to moneys in the banks when Emma Kane died and not to any withdrawals prior thereto, it is the duty of the court to give effect to the statutory provision that the making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which either the savings bank or the surviving depositor is a party, of the intention of both depositors to vest title to such deposit and the additions thereto in such survivor. (Moskowitz V. Marrow, 251 H. Y. 380; Marrow v. Moskowitz, 255 H. Y. 219; Matter of Porianda, 256 H. Y. 423; Inda v. Inda, 288 H. Y. 315.) Present — Close, P. J., Johnston, Adel, Lewis and Aldrich, JJ.