
    Mary Mack, as Administratrix of Valentine Mack, Deceased, App’lt, v. Mechanics’ and Farmers’ Savings Bank, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    Deposit in savings bank by-two ok make peksons—-When they hold as joint tenants.
    The deceased" having made a deposit in the defendant bank in his own name._ went with the defendant, Mary Mack, his molher, to said bank, and had his account changed so as to read “Mechanics’ and Farmers’ Savings Bank of Albany in account with Valentine Mack and Mrs. Mary Mack, order of either of them.” She at that time signed the signature book in the bank. Valentine afterwards spoke of the account as his mothers. The .day before his death, Valentine sent the book to his mother with the message “tell my mother to keep it for me.” Held, that the deposit belonged to them as joint tenants, and went to his mother as survivor.
    Appeal from a judgment entered upon the report of a referee.
    
      J. W. Ecker, for app’lt; Samuel S. Halt, for resp’t.
   Learned, P. J.

This is an action in which the plaintiff as administratrix of Valentine Mack, deceased, seeks to obtain a deposit, which, at his death, was in the Mechanics’ and Farmers’ Savings Bank; and which Mary Mack (another person) one of the defendants, claims to belong to her. The referee decided in favor of the defendant Mary, and the plaintiff appeals. The deceased, Valentine Mack, prior to September 1, 1887, had made deposit in the Mechanics’ and Farmers’ Savings Bank in his own name. On that day he came with the defendant Mary, his mother, to the bank, and had this account changed so as to read Mechanics’ and Farmers’ Savings Bank of Albany in account with Valentine Mack and Mrs. Mary Mack, order of either of them.” She, at that time,- signed the signature book in the bank. It is proved that on one occasion afterwards Valentine, speaking of this account to his mother, and showing the book, said “ this is yours.'”

We cannot say that this was a gift of the whole deposit to Mary; because Valentine still retained as much control over it as he conferred upon her. The deposit was in the name of both, and could be drawn by either. Both,,therefore, were interested in it, while it might be safely paid to either.

There would be a practical difficulty in the way of Mary’s drawing the money, because for a month afterwards Valentine retained the pass book, and, as is usual, the rules of the bank required the production of the book on depositing or drawing out money. But that circumstance, of itself, does not settle the rights of the depositors in respect to the money.

There is no evidence as to their rights except the facts above stated, and the further fact that, the day -before his death, Valentine sent the book to Mary (his mother) with the message: “Tell my mother to keep it for me.”

Row, if this money belonged to Valentine and Mary, as tenants in common, .each would presumably be the owner of one-half. If it belonged to them as joint tenants, it would go to the survivor.

The circumstances are not conclusive, but it seems to us that they point to a joint tenancy, for the whole amount was payable to either. Therefore, according to the terms, the amount would seem to be now payable to Mary on her demand.

The delivery of the book to her, accompanied by the mes-, sage above quoted, would perhaps have been insufficient to establish a gift had the money then stood in Valentine’s name. But as she then had already the right to draw the money, the possession of the book gave her complete power on that day to draw out the money for herself.

The transfer of the account to the two names was á gift of some kind to the defendant Mary, and her rights do not rest solely on the delivery of the book. If the question is one of intent, as was said in Orr v. MacGregor (7 N. Y. State Rep., 150), then the defendant has the finding of the referee in her favor. In that case the want' of knowledge of the transaction, on the part of the donor, was considered to be a circumstance tending to disprove the alleged gift. Here the defendant knew and was a party to the transfer on the bank book, signing her name in the signature book.

Ro other question is presented on the appellant’s points except those which we have considered

Judgment affirmed, with costs.

Landon and Ingalls, JJ., concur.  