
    Huldah B. Hallenbeck, Plaintiff, v. Albert C. Hallenbeck, Individually, Albert C. Hallenbeck and William T. Beebe, as Executors, Etc., of Huldah Van Aernam, Deceased, and the Albany County Savings Bank of Albany, Defendants.
    (Supreme Court, Albany Trial Term,
    June, 1904.)
    Gift — Ineffectual where the donor at all times' retains control of the thing given.
    Proof that a depositor in a savings bank, whose rules forbid payment except on presentation of the pass-book, went 'to the bank and asked the teller to add the name of her niece to the pass-book so that either or the survivor of either could draw the moneys, that the depositor then signed a printed form, which he presented to her, requesting the bank to add the name of her niece “ as owner and creditor with me” (these quoted words being printed) of all moneys and interest thereon deposited or to be deposited in her account “ with full authority for each, or either of us, or the survivor of us to draw from the said bank the whole or any part of such moneys or such interest,” and that the bank account was changed so as to read “ Pay to either or the survivor of either ” of the said persons, does not show a complete gift of the deposit to ■. the niece, since the depositor, shown at all times during her life to have retained possession of the pass-book, thereby retained control over the money and prevented her niece from drawing any of it except in so far as she permitted the niece to draw some of it by giving her from time to time possession of the pass-book for that purpose.
    Action brought by the plaintiff to recover from the defendant, the Albany County Savings Bank moneys deposited to the following account: “ The Albany County Savings Bank in Account with Huldah Van Aernam or Huldah B. Hallenbeck, pay to either or the survivor of either.”
    The printed instrument which Huldah Van Aernam signed, referred to in the opinion, read as follows:
    1 “ October 7th, 1897.
    
      “ The Treasurer of the Albany County Savings Bank.
    
      “ Will please add the name of my niece, Huldah. B. Hallenbeck, as owner and creditor with me of all moneys heretofore, or which may hereafter be, deposited in said bank under this account Ho. 12413, together with all the interest which has been or may hereafter be, credited to the said account ; with full authority for each, or either of us, or the survivor of us, to draw from the said bank, the whole or any part of such moneys or such interest.”
    It further appeared that before the death of Huldah Van Aernam, her niece, Huldah B. Hallenbeck, made two withdrawals from the deposit. The court found that Huldah Van Aernam intended that the deposit should become her niece’s property upon her own death. " - •
    P. C. Dugan, for plaintiff.
    Zeb A. Dyer, for defendants.
   Herrick, J.

I attach no importance in this case to the language of the instrument signed by Mrs. Huldah Van Aernam, by which the bank was authorized to add the name of Huldah B. Hallenbeck as an owner and creditor with Mrs. Huldah Van Aernam of the moneys theretofore deposited by her in the defendant bank.

The evidence shows that upon visiting the bank, Mrs. Van Aernam requested the teller “ To add the name of her niece to the pass-book, so that either or the survivor of either could draw the moneys.” That he thereupon produced a printed form which contained the words “As owner and creditor with me,” which he filled out and asked her to sign.

There is no evidence in the case that she asked the bank officer to constitute the plaintiff a joint owner and creditor with her; those words were words furnished to her by the bank officer by means of the printed form, and under the circumstances, cannot be construed as evincing a deliberate purpose and intent on the part of Mrs. Van Aernam to make the plaintiff a co or joint owner and creditor with her, of the moneys theretofore deposited by her in the bank.

I have considered at some length the law in cases of this character, in the case of Kelly v. Home Savings Bank, 44 Misc. Rep. 102, which renders unnecessary any lengthy discussion of this case.

.The facts show that Huldah Van Aernam never at any time surrendered dominion and control over the moneys in question.

The words “ either to draw,” coupled with the possession of the bank-book gave her entire control over the moneys upon deposit; she could withdraw them at any time, and, without possession of the bank-book, the words “ either to draw ” gave the plaintiff, Huldah B. Hallenbeck, no control or dominion over such moneys.

Under the rules of the bank, which were printed in the pass-book, no money could be drawn therefrom except upon the presentation of the pass-book, so that by the retention of the pass-book by Mrs. Van Aernam, she not only remained in control and dominion of the money, but she also prevented the plaintiff drawing any such .money except as permitted by her- by giving to the plaintiff, from time to time, possession, of tlm pass-book for that purpose. Keeping control of the pass-book kept control of the money, and stripped the transaction of that “ quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title.” Beaver v. Beaver, 117 N. Y. 421.

Within the authorities referred to in the case of Kelly v. Home Savings Bank, the gift here was- not a completed act.

There was only the intention, unaccompanied by such acts as would have carried that intention into effect.

The complaint of the plaintiff, must, therefore, he dismissed.

Complaint dismissed.,  