
    Anna Martz, Appellant, v. The State National Bank of North Tonawanda, Respondent.
    Fourth Department,
    November 15, 1911.
    Bills and notes— certificate of deposit in name of husband and wife — right of survivorship—action by survivor to recover funds —party — representative of deceased husband — transfer without indorsement. -
    Where a wife deposited money in the bank in the name of her husband and herself for the sole purpose of creating the right of survivorship and received a certificate of deposit therefor standing in the names of both, she alone is entitled to the fund on the death of her husband, and she may maintain an individual action to recover the deposit without joining her husband’s personal representative as party plaintiff.
    Although the money represented by the certificate of deposit standing in the name of the husband and wife was payable “ on the return of this certificate properly indorsed,V the wife, being entitled to the whole fund on the death of her husband, was not required in order to recover the same to obtain the indorsement of her husband’s personal representa- ■ tive, notwithstanding that section 71 of the Negotiable Instruments Law provides that, with some exceptions,' where an instrument is payable to the order of two- or more payees all must indorse.
    A negotiable instrument may be transferred without indorsement and the transferee becomes the owner. He may maintain an action thereon in ■ his own name, subject, however, to the equities which the debtor had at the time of the transfer against the claim while in the hands of the previous holder. ...
    Thus, the certificate of deposit,, though payable to the order of the depositor [on the return of the certificate properly indorsed, may be transferred by the payee without indorsement, and where she owns the whole fund as survivor, her right in no way depends upon a transféifrom or the indorsement of the' certificate by her husband’s personal representative.
    Appeal by the plaintiff, A rm a Martz, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 14th day of June, 1911, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the defendant’s demurrer to the complaint.
    
      James P. Lindsay, for the appellant.
    
      Norman D. Fish and Roland G. Baxter, for the respondent.
   Robson, J.:

The defendant is a duly organized and incorporated national bank located at North Tonawanda, and on the twenty-ninth day of July, on the deposit with it of the sum of $6,900, issued its certificate of deposit of which the following is a copy:

“'$6900.00
“ The State National Bank
“North Tonawanda, N. Y.
“Jul. 29,1910.
“Alfred and Anna Martz has (sic.) deposited in this Bank sixty-nine hundred and no/100 Dollars payable to. the order of themselves in current funds, on the return of this certificate properly endorsed. In case this amount shall remain on deposit for a period of 6 months, interest on the same shall be allowed at the rate of 4 per cent per annum, but no more than six months interest shall in any event be paid on this certificate.
“Int. from July 5, 1910.
“Not over Seven Thousand $7000$
“No. 13465. H. W. CLARKE, Cashier.”

Plaintiff’s action is upon this certificate; and further material facts alleged in her complaint are.: that prior to the issuing of said certificate she had deposited with the defendant the sum of $1,800, of which she was then the owner, to the credit of plaintiff and her husband, the said Alfred Martz, in the name of Alfred and Anna Martz, for the sole purpose of creating the right of survivorship in and to said moneys; that thereafter and on or*about the 29th day of July, 1910, the plaintiff and her said husband withdrew from said deposit the sum of $6,900 thereof and caused said defendant to issue therefor on that day the certificate above set forth for the purpose of creating and continuing in the plaintiff and her said husband the right of survivorship in and to said sum; that thereafter and on or about August 6, 1910, and while said marriage relation' between the plaintiff and her husband, the said Alfred Martz, still existed, her husband died intestate leaving plaintiff him surviving; that thereafter and on or about January 24, 19,11, plaintiff indorsed said certificate in her own name and for the purpose of obtaining the moneys represented thereby, duly presented the same to defendant and demanded payment thereof, which was refused; and that defendant still neglects and refuses to pay the same. Defendant demurred to the complaint upon the grounds that there is a defect of parties plaintiff in that the personal representative of Alfred Martz.is not joined as such, party; that the complaint does not state facts sufficient to constitute a cause of action; and that'plaintiff has no legal capacity to sue, in that the certificate of deposit set for,th in the complaint is made payable to the plaintiff and another person, and’ plaintiff cannot alone sue thereon.

We are of the opinion that the court improperly sustained the demurrer.

On the facts stated in the complaint, plaintiff, as survivor of the two payees named therein, became, on the death of her husband, the other, payee, the owner of the certificate of deposit and the estate of her deceased husband had.no interest therein, nor in the moneys which the certificate represented. (West v. McCullough, 123 App. Div. 846; affd., 194 N. Y. 518.) This seems to be conceded by defendant; but it is insisted in-its behalf that, as stated in the certificate, it has agreed to.pay the sum represented thereby only “ on the return of this certificate properly endorsed;” and the statute (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 71) prescribing, as did the common law before it, that where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others,” the indorsement of the personal representative of the deceased payee is necessary to comply with the specified condition upon which the bank agreed to. pay the certificate. But a negotiable instrument may be transferred without indorsement, and the transferee become its owner, and maintain an action thereon in his own name, it being, however, in such case subject to all the equities and defenses which the debtor had at the time of the transfer against the claim in the hands of the previous holder. (Goshen National Bank v. Bingham, 118 N. Y. 349. See, also, Neg. Inst. Law, § 79.) That a certificate of deposit, payable as this was to the order of the depositor on the return of the certificate properly indorsed, may be transferred by the payee without his indorsement, and an action maintained thereon by the transferee has been decided in Rivenburgh v. First National Bank (103 App. Div. 64). Plaintiff owns the certificate as survivor; and her rights therein and title thereto are in no way dependent upon any transfer or indorsement of the certificate by her copayee or his representative.. If she, as survivor, had for value transferred this certificate to A without her indorsement it could scarcely be contended that A would not have become its owner; and, if the owner, then certainly the case last cited is authority that he could maintain an action on it though not indorsed by either payee. But if an action could under the circumstances supposed be maintained by her transferee without the indorsement of either of' the original payees, then certainly she could maintain any action on the certificate, which by her assignment she. has the right to transfer to another.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to answer within twenty days, upon payment of the costs of the demurrer and of this appeal.  