
    Ambia Boody, Plaintiff, v. The Lincoln National Bank of New York and William G. McIntyre, as Administrator, etc., of Azariah B. Harris, Deceased, Defendants.
    
      Bank account in the name of one as “agent” — right to the balance on deposit at the depositors death.
    
    Azariah B. Harris kept a bank account in the name of “ A. B. Harris, Agent,” to the credit of which he was in the habit of depositing his own personal moneys and against which he checked from time to time. Ambia Boody drew her check to the order of Harris for $49,000 and gave it to him with instructions to use the money in purchasing stock of a certain railroad for her. Harris indorsed the check and deposited it to the credit of the account of “A. B. Harris, Agent; ” purchased stock to the amount of $43,000 and paid for it out of the moneys on deposit in the name of “A. B. Harris, Agent; ” delivered the stock to Ambia Boody, and thereafter died insolvent, without having returned the balance of the $49,000 to Ambia Boody and leaving $4,440.50 on deposit to the credit of said account. Ambia Boody and the administrator of Harris each claimed from the baijk the sum so on deposit.
    
      Meld, that the money in question should be paid by the bank to Ambia Boody.
    Submission of a controversy without action, upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. The facts agreed upon were as follows : On the 18th day of January, 1892, the defendant A. B. Harris, since deceased, had on deposit in the Lincoln National Bank of New York, defendant herein, a corporation duly organized and existing under and by virtue of the National Banking Act of the Hnited States, and resident in the city of New York, the sum of $2^967.01. Harris kept his bank account at the said bank in the name of “A. B. Harris, Agent,” and it was in this account that the said $2,967.01 was kept. '
    The bank book shows that Harris made deposits to the credrc of this account of “A. B. Harris, Agent,” of his own personal moneys and checked against it from time to time, and this $2,967.01 was the balance remaining on deposit to the credit of such account on said 18th day of January, 1892.
    On that day the plaintiff drew her check to the order of said Harris for $19,000, and gave the same to said Harris with instructions to use said money in the purchase for her of stock of the Yermont Yalley Bailroad Company. Said Harris accepted the money and agreed to carry out the plaintiff’s instructions. He indorsed the check and deposited the same on the 19th day of January, 1892, in said Lincoln National Bank to the credit of his account of “A. B. Harris, Agent.”
    On or about the 25th day of January, 1892, said Harris purchased 700 shares of the stock of the Yermont Yalley Eailroad Company, at sixty dollars per share, amounting to the sum of $42,000, and paid for the same out of the moneys on deposit in the name of A. B. Harris, agent, in said Lincoln National Bank, and delivered the said shares to the plaintiff.
    Said Harris never purchased any more shares of the said stock of the said railroad nor returned the balance of the money.
    The plaintiff was in no way indebted to the said Harris at the time she delivered to him said sum of $49,000, and the agreement between her and Harris was that the whole of said sum should be used by the said Harris in the purchase of stock of the said railroad company.
    On the twenty-first of January Harris deposited to the same account $100, and on the fifth of February a further sum of thirty dollars.
    In addition to the sum of $42,000, used in the purchase of said stock for plaintiff, said Harris drew out of said account for his personal use between the 19th day of January, 1892, and the 9th day of February, 1892, various sums amounting to $5,656.51, leaving on the 9th day of February, 1892, a balance of $4,440.50 in said bank to the credit of the account of the said A. B. Harris, agent.
    On the 9th'day of February, 1892, the said Harris died in the city of New York, and thereafter W. Gr. McIntyre, the defendant herein, was appointed administrator of his estate.
    Said sum of $4,440.50 is now in the possession of the said Lincoln National Bank of New York. The plaintiff has made demand upon said bank for the payment of said sum to her. The defendant McIntyre, as administrator .of the said Harris, has demanded payment of the said sum to him as such administrator.
    The defendant the Lincoln National Bank of New York makes no claim to said sum of money, and is prepared to pay over the same to whomsoever is entitled to receive it upon the order of this court.
    The liabilities of the estate of the said A. B. Harris, deceased, exceed his assets. The individual parties hereto are of full age.
    
      The question submitted, to the court upon this case is: Is said sum of $4,440.50 the property of the plaintiff, or is the administra* tor of the estate of the said Harris entitled to receive the same as part of the assets of the estate ?
    Plaintiff demands judgment directing that said sum of $4,440.50 in the possession of the Lincoln National Rank of New York be paid to her, and defendant William G. McIntyre, as administrator of A. B. Harris, deceased, demands judgment directing that the said sum of $4,440.50 be paid to him as such administrator.
    
      P. L. Kloeh, for the plaintiff.
    
      Edward Kent, for the defendants.
   Per Curiam :

The sum of $4,440.50 on deposit with the Lincoln National Bank to the credit of A. B. Harris, agent, must be paid to the plaintiff, Ambia Boody, with no costs to any party.

Present-— Yan Brunt, P. J., Follett and Parker, JJ.

The sum of $4,440.50 on deposit with the Lincoln National Bank to the credit of A. B. Harris, agent, must be paid to the plaintiff, Ambia Boody, with no costs to any party.  