
    Caroline Wilson, Appellant, v. Maurice B. Blumenthal, as Receiver, Respondent.
    (City Court of New York—General Term,
    May, 1894.)
    In an action to recover a bank deposit claimed by the wife of the depositor and a receiver appointed in supplementary proceedings against him, the judgment debtor and his wife testified that he, being indebted to her, gave her the pass book and thereafter made deposits for her and drew out moneys only by her consent. No notice of this transfer was given to the bank and no change in the account made. The judgment creditor and another witness testified that the wife, after the date of the , alleged transfer, told said creditor that her husband had money in bank and that he was drawing it out and giving it to a son by a former wife. Held, that a finding that the fund belonged to the judgment debtor was justified by the evidence.
    Appeal by plaintiff from a judgment on findings of fact and conclusions of law filed by the judge, decreeing that the defendant was entitled to the fund on deposit with the Seaman’s Savings Bank.
    
      James A. Deeri/ng, for appellant.
    
      Daniel P. Hays, for respondent.
   Van Wyck, J.

This action was originally against the Seaman’s Savings Bank for a deposit claimed by plaintiff, and also claimed by defendant as receiver of the property of the judgment debtor, Alanson Wilson, plaintiffs husband, and by interpleader such receiver was made defendant- instead of the bank. The cause was tried at the equity term, and the judge’s findings will not be disturbed, because they are not against the evidence or the weight of • evidence. The plaintiff and her husband, the judgment debtor, were her only witnesses, and he testified that he had on deposit in the bank in May, 1889, the sum of $1,059.87, evidenced by a pass book in his name, and that he then owed his wife about $1,100, and delivered this pass book to her for such indebtedness, but he said he could not give the dates when the sums were lent to him by her at various times, nor any of the specific amounts, and that the account was not changed at the bank nor the bank notified of such transfer, and that he himself drew in September, 1889, $925 from this amount, but by his wife’s consent and as a loan from her, which left the balance of $134 still in bank, and that afterwards, and between April and November, 1891, he made four deposits aggregating $400, but that these sums were his wife’s money handed to him by her for deposit; however, she testifies that she does not remember whether these deposits were made or not, and that she did not so deposit, and that if they were made that he made them, and both testify that in 1892, by her consent and as a loan from her, he drew $150 from the bank account, which left $384 on deposit. Both say that the bank was never notified of the alleged transfer, and that the husband in person drew all amounts and made all deposits; but that the moneys were drawn by her consent and used by the husband. The wife is the plaintiff claiming the fund and the husband was the judgment debtor and deeply interested in the result, and the very testimony of both bears marks of incredibility, and standing alone and uncontradicted might well have been disregarded by the judge trying both facts and law. But the judgment creditor testified that in August, 1892, the wife, plaintiff, told him that her husband had money in the Seaman’s Saving Bank, and that he was drawing it out and giving it to his son by a former wife, and that then was the first time that he had seen a chance of collecting anything on the old judgment which he held against the husband for $1,000, and Erhardt, a disinterested witness, testified that he heard this conversation between the wife and the judgment creditor. The findings of fact are justified by the evidence, and, as the questions asked on the cross-examination of the judgment creditor were properly excluded, the judgment is affirmed, with costs.

Ehrlich, Ch. J., concurs.

Judgment affirmed, with costs.  