
    (74 Hun, 53.)
    CUNNINGHAM v. DAVENPORT.
    (Supreme Court; General Term, Second Department.
    December 1, 1893.)
    Gifts inter Vivos—Validity.
    Where a depositor requests the bank to transfer to himself, “in trust for his brother,” a deposit then standing in his own name, which the bank does, and the depositor permits the account so transferred to stand for tiine years, such transfer, unexplained, operates as a valid gift to the brother, even, though the depositor retained possession of the bank book.
    Appeal from special term, Kings county.
    Action by John Cunningham against Margaret F. Woods to restrain said Woods from disposing of certain -books of deposit, and to have plaintiff declared the owner thereof. William B. Davenport, public administrator, as administrator of the goods, chattels, and credits of Patrick Cunningham, deceased, claiming one of these books of deposit by virtue of a gift from plaintiff to said deceased, was, on motion, admitted as a party defendant There was judgment for plaintiff, against defendant Woods, and for defendant Davfor the book claimed him. From that of the judgment in favor of defendant Davenport, plaintiff appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    
      J. Stewart Ross, for appellant.
    C. H. Otis, (James J. Rogers, of counsel,) for respondents.
   BARNARD, P. J.

The plaintiff, in 1869, opened an account in his own name with the Bowery Savings Bank in New York. He made deposits from time to time, and in 1881 he directed the bank to open a new account to the credit of “John Cunningham, in trust for Patrick Cunningham, his brother,” and to transfer the old account, standing in his own name, to the new account, which was done. The plaintiff never delivered possession of the book. Patrick Cunningham died on the 14th of April, 1890, and on the 17th of April, 1890, the plaintiff drew out the money, and applied it to his own use. The question presented is whether the gift to Patrick Cunningham is made out. ' The court of appeals, in the case of Martin v. Funk, 75 N. Y. 134, held that a deposit in the form in which this deposit was made operated to transfer the fund to the beneficiary prima facie, and, in the absence of other proof showing a contrary intent, the self-constituted trustee held the fund as trustee for the beneficiary. The principle decided in this case has been recognized and followed by the court of appeals in the cases of Mabie v. Bailey, 95 N. Y. 206; Willis v. Smyth, 91 N. Y. 300; In re Crawford, 113 N. Y. 560, 21 N. E. 692. In the case of Mabie v. Bailey the court intimates that the mere form of the deposit does not, of itself, determine a gift, but the surrounding circumstances may.be proven to aid or repel the fact of the gift. The case of Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, is not in conflict with the case presented by this appeal. In that case a father deposited money in the name of his minor son. • There was no delivery of the book to him, but the father retained the book for nearly 20 years. The father signed the request to the bank to open the account, and to receive the deposit from him. He also drew, on one occasion, from the account himself, and the son never knew of the deposit; but all the dealings in respect to the bank book were transacted with the father only, and this continued for some 16 years after the son became of age. The judgment should therefore be affirmed, with costs. All concur.  