
    Mary Florio, Appellant, v. Nicholas Florio, Respondent.
   Order, entered January 14, 1963, denying plaintiff wife’s motion for summary judgment in action to recover certain moneys withdrawn from joint accounts in Savings banks and savings and loan associations, and from a joint safe-deposit box, un'animously affirmed, without costs to either party. While it is clear enough that a presumption exists in favor of the wife as to the rights created by .the joint deposits, such presumption is generally rebuttable (Marrow v. Moskowitz, 255 H. Y. 219; Russo v. Russo, 17 A D 2d 129). No similar presumption of course applies to the moneys in the safe-deposit box, but as to these, plaintiff, in conclusory language only, alleges an agreement of joint ownership. A fair reading of defendant husband’s affidavit makes clear his purpose to assert and prove that there was never an intention to create the rights upon which the wife asserts her cause of action. The affidavit of defendant husb'and, while stressing the significant surrounding circumstances, neglects to reach explicitly the matter of intention, but that alone should not preclude a trial of the issues of fact evidently present. Concur — Botein, P. J., Breitel, Stevens, Steuer and Bastow, JJ.  