
    Henry Wetherow, Respondent, v. John B. Lord, as Committee of Mary Dwyer, an Incompetent Person, Appellant, Impleaded with The Brooklyn Savings Bank.
    
      Deposit in a bank in the joint names of a husband and wife payable to either — when a delivery of the book with a cheek for a part of the deposit by the husband to a third person is effective to transfer only the husband’s one-half.
    
    A person in possession of a savings bank book, containing an account in the joint names of himself and his wife, the money represented by which was payable on the draft of either, desiring to make a gift of the amount of the deposit to a third person, and not knowing the exact amount of the deposit, drew a check for a sum which proved to be less than the amount of the deposit, and delivered the check, together with the bank book, to the donee.
    
      Held, that as it did not appear whether the deposit consisted of money belonging to the donor, or to his wife, or who made such deposit, it would be presumed that each had an equal interest therein;
    That, while the donor could have drawn and made a valid disposition of the whole sum, he could not, as against his wife, make a gift to a third person of more than his interest in the fund;
    That the transaction amounted to a valid gift of the amount of the check, so far as the one-half interest of the donor was sufficient to pay the same.
    Appeal by the defendant, John B. Lord, as committee of Mary Dwyer, an incompetent person, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of February, 1899, upon the verdict of a jury, and also from orders entered in said clerk’s office respectively on the 4th and 7th days of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      T. Ellett Hodgskin, for the appellant.
    
      Frederick E. Crane, for the respondent.
   Hatch, J.:

The question presented in this case is more or less familiar, relating to what is essential in order to constitute a valid gift, either i/nter vivas or causa mortis. The essential requisites are that there must exist an intent to give; the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee. (Ridden v. Thrall, 125 N. Y. 572.) It, therefore, remains to he determined in this case whether there has been compliance with these essentials.

It appeared upon the trial that the donor, Jeremiah Dwyer, was in the possession of a bank book issued by the defendant, the Brooklyn Savings Bank, to him, containing an account in the joint names of Jeremiah Dwyer and Mary Dwyer, which was payable upon their draft, or the draft of either of them. Mrs. Dwyer was insane. Mr. Dwyer was living with the plaintiff, was ill, evidently approaching dissolution, and expressed a desire to give to the plaintiff, who was an old friend and had cared for him, the amount on deposit represented by the book. The evidence was abundantly •sufficient to support a gift of the amount represented by the book, accompanied by a delivery of the book itself; and there would be little difficulty in the case had the transaction there terminated so ■far as this branch of the case is concerned. It appears from the testimony that the amount of money represented by the book was not exactly known, and it was suggested by the notary public, who was present at the time, that a check or order be drawn for the •sum of $1,500 upon the account. This was done, Dwyer signing the same; the notary public attached thereto a formal acknowledgment of Dwyer as to its execution, and the bank book and this instrument were thereupon delivered to the plaintiff by Dwyer. In fact the $1,500 was for a less amount than was on deposit in the bank.

We come, therefore, to the question as to whether the gift of a specific sum, and the delivery of the bank books and the order, •are sufficient to vest the donee with title to such amount, although it be only a part of the sum which the donor had on deposit in the bank. The court submitted to the jury the question as to whether it was the intention of Dwyer, based upon these facts, to deliver to the plaintiff the property which was the subject of the gift, with right and authority to exercise dominion and control over the same, to the exclusion of any right possessed by the donor therein; and the jury under such submission found a verdict in favor of the plaintiff. Consequently it follows that their finding concludes all questions as to the sufficiency of the gift, except the one heretofore suggested, which is purely one of law.

As already observed, if tbe sum mentioned in the order or check had been the whole, the gift would have been clearly good. The contract which is created between a depositor and a savings bank is quite different from a contract between a depositor and a bank of deposit. In the former case the book evidences the contract, and the bank is not compelled to pay the depositor except upon presentation of the book. The book represents the depositor’s right to the money, and the bank is protected in payment upon presentation of the book, being without bad faith and guilty of no negligence, although in fact the book has been fraudulently obtained from the depositor. It represents the depositor’s security for the money, and the money is not permitted to be drawn except upon presentation of the book; and any person who obtains good title to the book, whether by purchase or gift, obtains title to the money represented by it, whether any other evidence of right to draw money accompany it or not. (Ridden v. Thrall, supra ; Pierce v. Boston Savings Bank, 129 Mass. 425.) Mo such conditions obtain with an ordinary depositor in a bank of deposit, as the depositor is given a pass book merely representing the amount of his deposit, and possession of such book by another person is no evidence whatever of title to such money in that person. It is not required to be presented to secure payment of checks, and is simply a statement of account with the bank; consequently the rules having regard to the status of holders of such checks drawn upon the fund on deposit cannot be held to apply in strictness to orders or checks made and delivered by the holder of a bank book of a savings bank. In the former case, title to the money does not pass until presentation and payment ; in the latter case the delivery of both, with intent to pass title to the money which they represent, has such effect. It is, therefore, evident that the unqualified delivery of a book of deposit in a savings bank, with intent on the part of the person making the delivery to give an amount of money to the donee, is sufficient to vest in the donee absolute title to the money represented by the book; and he may recover such amount from the bank upon giving evidence of such facts.

In the present case all of these steps were taken. The intent to give was present, the amount of the gift was specified in the check, and both book and check were delivered to the plaintiff by the donor. Hot the slightest doubt remains that the plaintiff could then have gone to the bank, demanded the money and compelled its delivery to him, even though such delivery were opposed by the donor; and this for the reason that every element of an executed gift by Dwyer to the plaintiff was present which had the effect of divesting the former of title to the money within all the authorities. (Harris v. Clark, 3 N. Y. 93 ; Champney v. Blanchard. 39 id. 111; Kimball v. Leland, 110 Mass. 325; Beaver v. Beaver, 117 N. Y. 421.)

The fact that the sum was less than the amount of money represented by the book does not appear to us to be of consequence. The gift was of money. The amount was specified; it was absolute and certain. The evidence of the gift was the delivery of the bank book and the order. This was essential in order to place the plaintiff in the same position that the donor would have been in had he gone to draw the money in person, and there was nothing more that could have been done to effect the delivery of the thing itself, except the donor in person drew the money and handed it to the donee. This was not essential, as all that was required was the delivery of the means by which the donee might possess himself of the property, and nothing remained undone to accomplish that end. It is a familiar rule that there may be an assignment of a part of an entire sum which will vest in the donee good title to such part (Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83), and where the intent so to do exists the court will give it effect. (Risley v. Phenix Bank of City of New York, 83 N. Y. 318.) In principle a gift of a part of a sum of money is not different.

The appellant claims, however, that the authorities overthrow this contention, some of which only is it necessary that we review, as they are all in harmony with the view above expressed. In Curry v. Powers (70 N. Y. 212) there was no dcliveiy of the bank book or the checks with intent to deliver the control of either to the donee named therein. On the contrary, the donor in that case retained control of the bank books and never ¡Darted with dominion over the fund represented thereby. He could at any time have canceled and destroyed the checks, demanded and obtained possession of the books or made any other disposition of the moneys which he saw fit to make. Tile observations made by the court in that ease must be read having regard to the intent of the donor, which, as was clearly expressed, was not to part with the absolute possession of the books for the purpose of enabling the donees to obtain the money therein represented ; consequently no title whatever to the moneys passed. In the present case the donor divested himself of all dominion and control over the fund to the extent of the $1,500 and intended so to do. In Matter of Smither (30 Hun, 632) the money was placed in a bank of deposit and was represented by a certifícate of deposit. It was held that the check which was given for the amount of the certifícate was ineffectual to transfer title to the money, and, not having been presented or paid during the lifetime of the deceased, did not vest the payee therein with title. But it was evident in that case that, had the transfer been of the certificate of deposit, with intent to make a gift of the money represented thereby, it would have been effectual for that purpose. (P. 634.) What was said by the court in Tilford v. Bank for Savings (31 App. Div. 565) does not aid the appellant. It was a mere tentative suggestion and did not assume to lay down the proposition that, if the gift was not of the whole sum, it could not be sustained. The court made the suggestion in view of some of the language used in Curry v. Powers (supra). If it were otherwise, the mere fact that the gift was to more than one person, or for the benefit of a third, would not necessarily invalidate it. (Loucks v. Johnson, 70 Hun, 565.)

A more serious question presents itself in this case than the one heretofore considered. It is not disclosed by the record to whom the money belonged when it was placed in the bank or who placed it there.1 All that appears upon this subject is that the fund was in the bank and Dwyer was in possession of the book. If the money was the money of Dwyer, then the act of depositing it in the joint name of himself and his wife would indicate an intent to vest in her title to the money should she survive him. (Whitlock v. Bowery Savings Bank, 36 Hun, 460; Platt v. Grubb, 41 id. 447; Wortman v. Robinson, 44 id. 357.) While this is the rule, yet the. husband, under such circumstances, remains the owner of the fund with right of disposition to the exchision of the wife. (Matter of Albrecht, 136 N. Y. 91.) Such right, however, would not exist if in fact the right of each in the fund was several and not joint. (Mulcahey v. Emigrant Industrial Savings Bank, 89 N. Y. 435 ; Gelster v. The Syracuse Savings Bank, 17 Wkly. Dig. 137.) As it does not appear who placed the money in the bank, either by proof or inference therefrom, we think the presumption must obtain that each had an equal interest; and, while undoubtedly it is true that had either drawn and made valid disposition of the whole sum no-complaint could be made, yet, as against the wife, we do not think that the donor could make a gift of more than his interest in the fund, as it may not be presumed that the parties, by any arrangement which they made, could reasonably contemplate that the property rights of either would be destroyed by a gift to a third person of the money. There is no legal obstacle of which we are aware, however, which would prevent one owner from making a valid gift of his share.- Under the circumstances of this case, it not appearing that the donor was the owner of the money or legally in a position to make a valid gift of the whole, we think he had -the clear right to give his share, and we see no reason why it may not operate as a gift of the sum which he had the legal right to give. This would leave the check to operate as a valid gift of one-lialf of the sum of money on deposit in the bank.

This view leads to a modification of the judgment by requiring the plaintiff to stipulate to reduce-the sum to one-half of the amount on deposit. In case of failure to so stipulate, the judgment should be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new. trial granted, costs to abide the event, unless within twenty days plaintiff stipulates to reduce recovery of damages to a sum equal to one-half of the amount on deposit in the bank and extra allowance proportionately; and in case of such stipulation then the judgment, as modified, is affirmed, without costs'to either party.  