
    George Grafing, Appellant, v. The Irving Savings Institution, Respondent.
    
      Savings bank deposit in na/me of “ Diedriek* or George Gs'afing ’’made by Diedrich— right of the executor of Diedrich to withdraw it after his death. ■
    
    April 10,4893, Diedrich Grafing deposited §1,000 in a savings bank in the name • of “ Diedrick or George Grafing.” Thereafter he made an additional deposit . in the account and made two withdrawals therefrom. He died August 20, 1894, and on October 8, 1894, the bank, in conformity with its rules, paid the amount of the deposit to his executrix upon the presentation of the pass book by her. None of the moneys were deposited by George Grafing, and he never had possession of the pass book. He made no demand on the bank for the ■ deposit prior to the time it was paid over to- the executrix of Diedrich Grafing, .. and it did not appear that he ever knew of its existence until after that time.
    
      In an action brought by George Grafing against the savings bank to recover the amount of the deposit, it was
    
      Held, that the plaintiff was not entitled to recover;
    That the intention of Diedrich Grafing in making the deposit in the form which he did was immaterial, as the bank, in the absence of any notice of a hostile claim on the part of George Grafing, under the circumstances, was justified In making payment to the executrix of Diedrich Grafing.
    Appeal by the plaintiff, George Grating, from a judgment of .the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th 'day of August, 1901,. upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.
    
      Edward W. S. Johnston and Lewis S. Goebel, for the appellant.
    
      Robert O. Beatty [Robert E. Deyo with him on the brief], for the respondent.
    
      
       Sic.
    
   Hirschberg, J.:

In affirming this judgment we adopt the opinion of Mr. Justice ~BnTTS at the S~eciaI Term. Itis immaterial what may have been the intention of Diedvich Grafing in making the deposit in the form in which he did as between the parties to this action, now that the money has been, paid over in good faith and without notice of the plaintiff’s claim. None of the money belonged to the plaintiff, he deposited none of it, and it does not appear that he ever knew of the deposit until after the bank had closed the account by repayment to his brother’s executrix. The. bank was justified in making the payment by its rules, by the possession and production of the pass book, and by the fact that the form of the deposit was in favor of either severally. The case is distinguished from Mulcahey v. Emigrant Industrial Sav. Bank (89 N. Y. 435), largely relied on by the plaintiff. It is not the case therein suggested (p. 438) “ of > joint deposit, of a joint fund, belonging to the two depositors,” in which event the court, said, “ it would seem to follow that the legal title to the deposit vested on the death of O’Keefe in the plaintiff, and that the liability of the bank at law was not discharged by payment to his administrator.” On the contrary, the fund here was not a joint fund. It belonged altogether to the depositor Diedrich, and in making the deposit in his name or in-that of his brother, the plaintiff, whatever may have been his intention as to the conferring of a beneficial interest in the fund upon his brother and whatever the nature and extent of that interest, if any, adopted a form of deposit which on its face and under the rules of the institution invited and justified payment to either upon production óf the pass book and in the absence of notice of a hostile claim from the other. The language of the court in the Mulcahey Case (supra, at p. 439) is, therefore, applicable. The right of the bank thus to pay, and of each depositor to demand payment, was not, we think, terminated by the death of O’Keefe. The authority O’Keefe had was coupled with an interest, and vested on his death in' his personal ■representative, The bank agreed,- in substance, to pay to either, depositor oil the production of the- pass book. The several character Of its obligation was not transformed by the death-of O’Keefe into an obligation to pay to the survivor alone. But when the bank had notice that the fund belonged to the plaintiff and was prohibited by 'her from paying it to the representatives of O’Keefe, it could not thereafter justify a payment to the latter under the original authority, or by reason of the-rule in the pass book, if the money of right,, as between the-plaintiff and the estate of O’Keefe, belonged'to the' former.” ...

- I find no authoritative decision in conflict- with' this. reasoning. On. the contrary, it -would seem that what was said in Matter of Bolin (136 N. Y. 177, 179) would fully jiistify the bank in assuming that it -would be entirely safe -to -pay- the'.personal representative of the deceased depositor, in the absence of notice, viz;: “ That the moneys were deposited to the account of ‘ Julia Cody or daughter, Bridget Bolin,’ is not a fact from which any inference of a irons* fer or of a. gift-arises. In the absence of other evidence the transa action simply evidenced a. purpose of the depositor of the moneys that they should be drawn out by either of the persons named. The only jpresvmvption would be that the dépositor so arranged for the purposes of convenience,” etc, ■ .

The judgment should be affirmed:

All concurred.

Judgment affirmed, with costs. 
      
      The following is the opinion of Mr. Justice Betts, delivered at the Kings County Trial Term:
      Betts, J.:
      Prior to April 10, 1893, one Diedrich Grafing had an account amounting to §1,000 on deposit with the defendant, which account he closed that day by balancing it and opening a new account with the said §1,000 in the same bank in the name of “ Diedrick or George Grafing." Subsequently the said Diedrich -Grafing made an additional deposit and drew out two different amounts. Diedrich Grafing died on or about the 20th day of August, 1894. On October 8, .1894, Adelaide F. Grafing, as executrix of Diedrich Grafing, presented the pass •book and a certificate of letters testamentary issued to her under the last will •and testament of said Diedrich Grafing and a check or draft upon said bank for §2,000, and the defendant paid this amount to her and closed the account, retaining the pass book.
      • George Grafing, the plaintiff, never deposited any funds in this account nor ■drew anything therefrom, never had possession of the pass book nor was he shown to have made any demand on the bank prior to this payment or to have given it any notice of Ms claim to said fund prior to said payment. He brings this action against the defendant for the amount of said deposit, the sum of §2,000.
      The plaintiff’s title to the amount secured by tMs bank book cannot be upheld • as a gift. .. . •
      
        “ The elements necessary to constitute a valid gift are well understood and are not the subject of dispute. There must be on the part of the donor an intent to give, and a. delivery of the thing given, to or for the donee, in pursuance of sucli intent, and on the part of the donee, acceptance. * * * The delivery may be symbolical or actual, that is, by actually transferring the manual custody of the chattel to the donee, or giving to him the symbol which represents possession. In case of bonds, notes or choses in action, the delivery of the instrument which represents the debt is a gift of the debt, if that is the intention; and so, also', ■ where the debt is that of the donee it may bo given, as has been held, by the delivery of a receipt acknowledging payment. (Westerlo v. De Witt, 36 N. Y. 340; Gray v. Barton, 55 id. 72; 2 Schouler on Pers. Prop. § 66, et seq.
        
        ) The acceptance, also, may be implied where the-gift, otherwise complete, is beneficia, to the donee. ' But delivery by the donor, either actual or constructive, operating to divest the donor of possession of and dominion over the thing, is a constant and essential factor in every transaction which takes effect as a completed gift. Anything short of this strips it of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from thq consummated act, which changes the title. The intention to give is often established by most satisfactory evidence, although the gift fails. Instruments may be ever so formally executed by the donor, purporting to transfer title to the donee, or there may be the most explicit declaration of an intention to give, or of an actual present gift, yet unless there is delivery the intention is defeated.” (Beaver v. Beaver, 117 N. Y. 421, 428, 429; Matter of Bolin, 136 id. 177.)
      I find nothing in the evidence that would cor.stitute these parties joint owners of this fund, nor do I find any decision so holding under similar circumstances, nor do I think the form of deposit was such as to put defendant on inquiry as to any claim of plaintiff. Its dealings had all been with Diedrich Grating, and on presentation of pass book in accordance with its rules by his executrix payment by it would seem to be the natural and ordinary way for it to close the account.
      Assuming then that no gift has been established in this aetion, the only inquiry that remains is whether the form of the deposit created a trust on the part of Diedrich Grating for the benefit of his brother, George Grating. It is claimed by the plaintiff that Diedrich Grating was by the form of said deposit constituted a trustee as to it for said George Grating, that it created a trust. If that were so, it would be necessary in order for the plaintiff to maintain this action to establish that a demand was made upon the defendant for the amount of this deposit by the plaintiff, George Grating, or some one for him prior to the payment by the defendant to the executrix of Diedrich Grating. The defendant’s evidence is positive that no demand was made prior to the said payment. The plaintiff’s evidence is very unsatisfactory as to whether any demand at all was made and if so by whom or when.
      The courts have held that, even if a trust was created, payment by the bank to the executor or administrator of the trustee was a good payment, if made prior to a demand made or notice given not to pay by the cestui que trust. (Boone, v. Citizens’ Savings Bank of the City of New York, 84 N. Y. 83; Schluter v. Bowery Savings Bank, 117 id. 125.)
      Hence, holding as I do that no demand upon the defendant or notice given to it by the plaintiff of claim of ownership prior to the payment of the fund in question were shown, it is unnecessary to determine in this action whether a trust was created by this form of deposit or not, and it, therefore, follows that this action cannot be maintained.
      Judgment ordered for the defendant.
     
      
       Sic.
     
      
       Second edition.— [Rep.
     