
    FORDRED against THE SEAMEN’S SAVINGS BANK.
    
      Court of Appeals,
    May, 1871.
    
    Parties.—Savings Banks.—Drafts.
    A draft upon a savings bank cannot operate as an assignment of moneys not deposited till after the draft was drawn; when applicable to such funds, it is a mere authority or direction to the bank.
    Such a draft, no interest being proved by the payee, is revocable, and upon the death of the drawer, is revoked.
    Hence, the proper party to sue in such a case, is the executor or administrator of the depositor.
    This was an action brought by Sarah M. Fordred, to recover the sum of one hundred and forty-five dollars and sixteen cents deposited with the defendant by her son, Drayson Fordred. .
    Fordred had given the mother a draft upon the bank dated May 30, 1863, for all money and interest standing in his name. The first deposit was not made until July 30, 1863.
    Drayson Fordred died June 3, 1864, and the draft was not presented until the latter part of September, 1868. Payment was refused, on the ground that the money belonged to Drayson Fordred’s administrators.
    Upon the trial, the judge directed a verdict for the plaintiff, to which direction exception was taken, and the court directed the exceptions to be heard in the first instance at the general term, where the verdict was affirmed and a new trial denied. The defendant then appealed to this court.
    
      M. S. Bidwell, for defendant,appellant.
    Among othey points, insisted.—I. The order of Drayson Fordred was revocable, and revoked by his death (Hunt v. Rousmaniere, 8 Wheat., 174 ; 2 Kent Com.," 646 ; Story on Agency, § 488; 2 Pars, on Bills, 210).
    II. The presumption is that the ownership never passed (1 Greenl. on Ev., §§ 41, 42 ; 1 Cow. & H., 295 ; 2 Stark. on Ev., 36 ; Best on Pres., 186, 187 [31 Law Libr., N. S.] ; Flanders v. Merritt, 3 Barb., 201; McMahon v. Harrison, 6 N. Y. [2 Seld.], 443).
    III. The draft cannot be regarded as an assignment, and Dray son Fordred’s right was a chose in action (Downes v. Phoenix Bank, 6 Hill, 297; Lund v. Seamen’s Bank for Savings, 37 Barb., 129, 132 ; Chapman v. White, 6 N. Y. [2 Seld.], 412, 417; Pott v. Clegg, 16 Mees. & W., 321); and equity will not give effect to an assignment where there is no consideration (Prescott v. Hull, 17 Johns., 284, 292; Kennedy v. Ware, 1 Pa. St., 445).
    IV. The money being deposited to his credit, he retained control of it (Rupp v. Blanchard, 34 Barb., 627).
    V. The bank is responsible to Fordred’s administrators (Pond v. Makepeace, 2 Metc., 114).
    
      S. L. Gardiner, for plaintiff, respondent.
   By the Court.—Rapallo, J.,

The draft upon which the plaintiff founds her claim, could not operate as an assignment of the fund in question, for the reason that the fund did not exist at the time the draft was drawn.

The deposits were not made till long afterward. The drawing of the draft, and its delivery to the plaintiff could not, therefore, vest in her any title, legal or equitable, to the money in question. If construed as applicable to any funds which the drawer might deposit after the date of the draft, it was, as to such funds, a mere direction or authority to the bank.

There is nothing in the case to show that the plaintiff had any interest in the matter.

A consideration cannot be presuméd to have been given by the plaintiff for such a draft. She knew the condition of the bank account. It depended upon the future action of the drawer whether or not there would be any fund to which the draft could apply, and there was no evidence of any obligation on his part to create the fund.

Viewing the draft as a mere direction or power, the •plaintiff not having proved any interest, it was revocable, and was revoked by the death of the drawer.

The money belonged to the deceased, and was deposited in his name. It is alleged in the complaint to have been deposited by Mm. The plaintiff was merely Ms agent. The bank became indebted to him for the money, and it is accountable therefor to his executor or administrator.

We are constrained to hold that, on the facts proved, the plaintiff was. not entitled to recover, and that the judgment must be reversed and a new trial ordered, with costs to abide" the event.

Judgment reversed, and new trial ordered, costs to abide event.  