
    In the Matter of the Estate of Aniela Poltorak, Deceased. John S. Zachary, as Executor of Aneila Poltorak, Deceased, Respondent. Joseph Poltorak, Appellant.
   In a discovery proceeding to determine whether appellant should deliver to petitioner the proceeds of a joint savings account maintained in the names of petitioner’s decedent and the appellant, decree of the Surrogate’s Court, Queens County, dated August 3, 1970, affirmed, with costs. In our opinion, though neither fraud nor undue influence nor the illness of the decedent at the time of the creation of the joint savings account were proved, sufficient evidence was received to sustain the Surrogate’s finding that the account was created by the decedent only for the purpose of enabling the appellant to use the funds on behalf of the decedent (Banking Law, § 675, suhd. [b]). Gulotta, Christ and Benjamin, JJ., concur; Munder, Acting P. J., and Shapiro, J. dissent and vote to reverse and to dismiss the proceeding with the following memorandum: In our opinion, there was no competent evidence to rebut the presumption of a gift to the appellant (decedent’s son). The transaction was a conventional Totten Trust arrangement, with the passbook delivered to appellant. His agreement to see to his mother’s care does not destroy or limit the gift.  