
    In the Matter of the Application of Josephine Cooney to Compel Delivery by James L. Clare, as Executor, etc., of May E. Gordon, Deceased, to the Said Josephine Cooney of Certain Specific Personal Property. James L. Clare, as Executor, etc., and Carl Eill Schiffer, Special Guardian, Respondents, Appellants; Josephine Cooney, Petitioner, Respondent; The Bowery Savings Bank, Respondent.
   Separate appeals by James L. Clare, as executor, etc., and Carl Bill Sohiffer, special guardian of John G. Cooney, from a decree of the Surrogate’s Court of Bronx County, entered in the office of said Surrogate’s Court on May 23, 1941, directing said executor to turn over to petitioner Josephine Cooney a pass book of Bowery Savings Bank and that the balance in the account be paid to her, except that portion of said decree which awards $125 to said special guardian.

Decree, so far as appealed from, affirmed, with costs. No opinion.

Present- — -Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.; Untermyer and Dore, JJ., dissent and vote to reverse and dismiss the petition ¡dissenting opinion by Untermyer, J.

Untermyer, J.

(dissenting). There was never a delivery of the pass book coupled with an intention to make a gift of the bank account which it symbolized to the petitioner. Delivery to Miss Nolan, concededly the agent of the deceased, for the purpose of securing information at the bank did not constitute delivery to the petitioner. (Vincent v. Rix, 248 N. Y. 76.) Ultimately, the pass book was delivered to the petitioner only to create a joint account and with a written application for that purpose. The petitioner received the pass book on these terms and recognized the purpose for which it was delivered by attempting to create a joint account at the bank. That attempt failed because of the intervening death of the deceased. (Augsburg v. Shurtliff, 180 N. Y. 138; Matter of Cuggino, 253 App. Div. 132; affd., 279 N. Y. 692.)

The decree should be reversed and the petition dismissed.

Dore, J., concurs.  