
    Platt v. Elston et al.
    
      Peters & Prather, and English, Quinn, Leemhuis & Tayntor, for plaintiff.
    
      Gunnison, Fish, Gifford & Chapin, for defendants.
    
      October 14, 1938.
   Hirt, P. J.,

This is a rule in attachment execution proceedings on defendant, The National Bank of Union City, for judgment for the amount of a bank deposit alleged to be the property of defendant Bertha E. Elston.

The difficulty with plaintiff’s position is that in the answers to interrogatories The National Bank of Union City does not admit that it has on deposit moneys belonging to defendant Bertha E. Elston. The extent of the admission is that at the time of the attachment execution the bank had on deposit the sum of $84.45 in a regular checking account in the name of “Bertha E. Elston or father”; that, said account being a joint account, deponent is not prepared to answer as to whether said sum of $84.45 is the property and money of Bertha E. Elston or that of her father. Though Bertha E. Elston undoubtedly had the right to withdraw moneys from the account, yet this fact, nor the fact that the account stood in her name with her father, is not conclusive of the question of ownership. We are not in entire accord with Pilewsky v. Dickson City National Bank, 24 Lack. Jur. 9, cited by plaintiff. The liability of a bank on a deposit certainly is discharged by the voluntary withdrawal by one or the other of two depositors where the account stands in their names in the alternative as in this case? but any involuntary payment out of the fund on deposit must rest upon proof of ownership of the account in the one against whom the collection is being enforced. In this case the fund may have been the moneys of the father, and the account may have been opened in both names as a convenience merely for making withdrawals. Judgment, therefore, can be entered against the bank as garnishee only after proof that the moneys on deposit are those of Bertha E. Elston.

And now, to wit, October 14, 1938, plaintiff’s rule entered May 20, 1937, for judgment against The National Bank of Union City, garnishee, is discharged.  