
    Mary Murphy, Respondent, v. Franklin Savings Bank in the City of New York, Appellant, Impleaded with Patrick Murphy, Defendant.
    First Department,
    April 16, 1909.
    Party — joint bank account — service by publication — necessity for service by mail— when omission reversible error.
    Where a savings bank account is in the joint names of a husband and wife and the signatures of both are required to draw, the husband is a necessary party defendant in an action by the wife to recover the deposit.
    Where it appears that the husband had gone to “The Klondike; ” that the plaintiff had heard from him three or four years before the trial at which time he was in Cleary City, Alaska, or Seattle, Alaska, and in June, 1906, she received a letter from a third party giving her husband’s address as Cleary City, Fairbanks, Alaska, an order lor service on him by publication should not dispense, with service by mail, and in so far as it attempts so to do it is void. •
    Where the question as to the sufficiency of the service on the defendant husband has been directly raised, the error in dispensing with' service by mail calls for the reversal of a judgment for the wife.
    Houghton, J., dissented, with opinion.
    Appeal by the defendant, the Franklin Savings Bank in the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1908, upon the report of a referee appointed to hear, try and determine the issues.
    
      Wilson M. Powell, for the appellant.
    
      Lincoln McCormack, for the respondent.
   Laughlin, J.:

I am of the opinion that the judgment should be reversed upon the ground that jurisdiction of the defendant Patrick Murphy was not acquired by the service by publication.

The action is to recover the balance of a fund on deposit with the appellant to the credit of the plaintiff and of the defendant Patrick Murphy. The pass book indicates that it was a joint account, but the signature book of the bank, in which the signatures of the parties were entered at the time the account was opened, contains the entry, following the signatures and information concerning the parties required by the rules and regulations of the bank, as follows: “ Both signatures required to draw.”

The balance on deposit at the time the action was brought was the sum of $3,844.44. Prior to the opening of this joint account the plaintiff had the sum of $1,223.08 on deposit to her credit with the appellant. On the 29tli day of April, 1891, after plaintiff married the defendant Patrick Murphy, they both went to the bank, and she authorized the transfer of her individual account to their joint account. She testified upon the trial that she supposed that either of them, on the production of the bank book, could draw on the account; but she also testified that she knew that her money was transferred to the joint account, and that the signatures of both herself and her husband would be required when money was to be withdrawn.

The president of the appellant was permitted to testify, without objection • or exception, that although he did not superintend the transfer of the account, he knew from the records of the bank that it was changed to a joint account, and that the signatures of both were required to withdraw funds. It would seem that additional deposits to the credit of this account were made, but it does not appear that any money was withdrawn.

In these circumstances, it is evident that the defendant Patrick Murphy had an apparent interest in this account, and that he should be a party to any action by which the appellant is to be required to pay it over, in order that it may be protected against a subsequent action by him in which other facts may be proved tending to establish that he has an interest in this fund. He was, therefore, properly joined as a party defendant, and before trial or judgment service of process should be made upon him by which he will be foreclosed from asserting any claim against the appellant on account of the fund.

I think that the moving papers satisfactorily show that, in the exercise of due diligence, personal service could not be made upon him within this State; but, on the other hand, I am of opinion that the order in so far as it attempts to adjudicate that the affidavits were sufficient to satisfy the judge that the plaintiff could not “ with reasonable diligence, ascertain a place or places where the defendant would probably receive matter transmitted through the post-office,” as provided in section 440 of the Code of Civil Procedure, and dispenses with service by mail, was without evidence to support it, and, therefore, void. The question having been raised directly in the action, the court, perhaps, is not confined to an adjudication as to whether the proof was sufficient to sustain the judgment against collateral attack by the defendant Murphy, but may say that payment should not be ordered on unsatisfactory proof dispensing with service by mail. If so, then it is very clear from the testimony of the plaintiff given upon the trial that she knew from a letter which she had personally received from her husband, in answer to one which she had mailed to him through a third party some three or font years before the trial, that he was in Cleary City, Alaska, or Seattle, Alaska, and that he might contemplate asserting a claim to this fund, because according to her testimony, she had requested him, and he promised, to forward to her a power of attorney to authorize her to receive this account, which he never did. This precise information was not contained in the affidavit which was presented to the judge who dispensed with service by mail. The order for service by publication was based upon the affidavits of the plaintiff, her attorney, and of one Fay. These affidavits showed that the defendant Patrick Murphy had gone to the region known as “The Klondike;” that the plaintiff had heard from him on three or four occasions, but did not remember from whence the letters were written j that the last information concerning his whereabouts was contained in a letter which she received from a person in Vancouver, B. C., in the month of June, 1906, stating that his address at that time was Cleary City, Fairbanks, Alaska. The affidavit contained nothing tending to show any change in his address. It was alleged in the complaint also, that in June, 1906, plaintiff received a letter from a party in Vancouver, stating that her husband’s address at that time was “ Cleary City, Fairbanks, Alaska.” It appears to be asserted on this appeal, for the first time, in the brief of counsel for plaintiff that Cleary City and Fairbanks are two different places and that together they did not constitute a proper post office address. This was not explained in the complaint or affidavits nor upon the trial, and the court should not now be called upon to speculate as to whether that was a proper post office address in June, 1906, or whether a letter so addressed would have reached the defendant Murphy. If this was a post office designation at that time, although Cleary City and Fairbanks are two separate post offices now, that is of no consequence, for the change in the name of the post office should have been cleared up by the affidavits; and even if Cleary City and Fairbanks were separate post office addresses at that time, still that would not have justified dispensing with service by mail, but would have required that the papers be mailed to the plaintiff at each post office, for it would be apparent that a mistake had been made as to one or the other. USTo explanation is offered as to why the plaintiff did not seek the address of her husband from the party through Avhom she had previously forwarded mail to him, or from the party who, in June, 1906, gave her his address. It was merely shown that a letter written by. the plaintiff’s attorney to the postmaster at Cleary City and Fairbanks, Alaska, asking for the address of the defendant Murphy, was unanswered, and that an answer was received to a similar letter written by him to the postmaster at Vancouver, B. C,, to -the effect that the postmaster could not give tho information. These affidavits afforded no evidence of a change of address by the defendant Murphy. It is well known that postmasters are not at liberty to disclose the addresses of people unless special circumstances are presented; and as it does not appear that any special circumstances were presented which would justify the postmaster in disclosing the information, it is of no importance that in the one instance the letter was not answered, and in the other that an answer ivas received which may well have been intended to mean merely that the postmaster Avas not at liberty to divulge information on the subject. Assuming, therefore, without deciding the question, that in passing upon the sufficiency of the affidavits upon which the application for publication was made on a review of the trial in the action, we are to he guided by the principle that would be controlling in a collateral attack upon the judgment, still I am of the opinion that the affidavits showed an address of the defendant Murphy where it was probable that matter duly mailed to him would be received by him, and that, therefore, the service by mail could not properly and should not have been dispensed with.

It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., MoLaughlin and Clarke, JJ., concurred; Houghton, J., dissented.

Houghton, J. (dissenting):

I think this action is properly brought, and that the order of publication against Patrick Murphy properly dispensed with mailing of notice to him.

It is undisputed that at the time the plaintiff was married to the defendant Patrick she had on deposit with the defendant savings bank $1,263 of the money now on deposit, and that she herself made all the deposits from her own money thereafter. It stands, therefore, upon the undisputed proof that notwithstanding the form of the deposit she is the owner of all the money, and that she at all times has been in sole possession of the bank book.

The deposit being in the name of Patrick and Mary Murphy, it was unimportant that on the bank signature book an official had written it was not to be drawn except upon the signatures of both. The form of the deposit would indicate on its face that both must draw, and that one could not do it alone. Notwithstanding this fact, it appearing that all the money belonged to the plaintiff, she has the right to do it as against a formal joint depositor.

The recent case of Kelly v. Beers (194 N. Y. 49) is express authority for the proposition that the actual owner of money on deposit in a savings bank, notwithstanding the particular form in which the deposit is made, is entitled to the money on proving ownership, and also is express authority for the proposition that an equitable action may be maintained to establish ownership. Such is the form of the present action, and the only persons interested in the deposit are parties thereto. I do not understand the defendant bank to claim that such an action is not maintainable. Such a proposition arose only in this court. That it is maintainable seems to me too plain for discussion. The only question which the bank does urge is whether the defendant Patrick could be brought into court by substituted service, and if he could, whether the provision of the order of publication dispensing with mailing of' notice was justified. I think an order could issue, and that the dispensing with mailing was justified and that the judgment should be affirmed.

Section 438, subdivision 5, of the Code of Civil Procedure provides that a defendant may he brought into court by substituted service where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property.” While technically the relation between a bank and its depositor is that of debtor and creditor, in a broader sense the bank holds the money for the depositor. Especially is this true oí a savings bank. 1 think a deposit of a specific amount of money in a bank can fairly be said to be a fund, the title to which, or an interest in which, can be the subject of litigation and adjudication. If so, it comes within the provisions of the Code permitting substituted service upon a defendant who is sought to be excluded therefrom, or his right therein defined or limited.

Orders of publication were held improper in Bryan v. University Pub. Co. of N. Y. (112 N. Y. 382) and in Von Hesse v. Mackaye (55 Hun, 365; affd., 121 N. Y. 694) on the ground that the personal property in controversy was not within this State.

In Chesley v. Morton (9 App. Div. 461) the order was upheld on the ground that the action partook of the nature of one in rem.

The plaintiff asks that it be adjudged that she is the sole and absolute owner of the deposit, and that the claim of the defendant Patrick thereto, if any, be determined. She also asks that if it be determined that she is the sole owner and that Patrick has no interest therein, that it be adjudged that the bank pay the same to her. It seems to me that such an action is one to determine a claim to personal property situated within the State. It would be a very monstrous failure of justice, not only in the present case, but in many similar ones, if the actual owner of a joint deposit could not have it adjudged that he was the owner, where the joint depositor had disappeared, or chanced to be a non-resident upon whom substituted service could not be made.

If the action is one, as it seems to me it is, in which an order of }>ublication against a non-resident defendant was proper, then I think the judge granting the order of publication was entirely right in dispensing with mailing. Section 440 of the Code prescribes that if the judge granting the order be satisfied from the affidavits that the plaintiff cannot with reasonable diligence ascertain a place or places where the defendant would probably receive matter transmitted through the post office, he may dispense witli the deposit of any papers therein. The affidavits show that the defendant Patrick disappeared in 1898; that plaintiff, although she heard from him on three or four occasions, had not heard about him since June, 1906, when some third person, at Vancouver, B. C., wrote her that her husband Patrick at that time was at Cleary City, Fairbanks, Alaska. The order of publication was granted in May, 1908. The affidavits show that every reasonable effort was made and all possible inquiries instituted to ascertain whether or not service could be made upon him in this State, and service was found impossible. Thereupon one of plaintiff’s attorneys wrote to the postmaster at Cleary City and at Vancouver, B. C., making inquiries concerning Patrick. The postmaster at Vancouver replied that he could not give the information asked for, and the postmaster at Cleary City did not reply at all. His sister had not heard from him and knew nothing of him, except some four years prior she had received a letter from him from some place in Alaska, at what place she did not know, and she believed that he was in the region known as the Klondike, in British America or Alaska. Upon this proof the judge granting the order of publication was entirely warranted in coming to the conclusion that it would be a futile thing to require mailing of a notice. In Kennedy v. Lamb (182 N. Y. 228) the nature of the evidence required to be presented to the judge granting an order of publication is commented upon, and it is there held that any evidence having a legal tendency to show compliance with the statute, even if inconclusive, would warrant the exercise of judgment and thus confer jurisdiction to make the order, and that even if the judge reached a wrong conclusion upon the facts presented, so that his order would be set aside on direct attack by motion to vacate, still if he had some legal evidence to act upon, the order would be protected from collateral attack after the entry of judgment. To the same effect is Evans v. Weinstein (124 App. Div. 316). The question here under consideration is not whether the order would have been set aside on a direct attack, but whether the court obtained any jurisdiction whatever to make it, without service by mail. Facts insufficient to sustain an order on a direct attack may be entirely sufficient to uphold the jurisdiction of the judge making it. (Belmont v. Cornen, 82 N. Y. 256; Donnelly v. West, 66 How. Pr. 428; Walker v. Reiff, 13 Wkly. Dig. 331.) I have very grave doubts whether, if the judge had jurisdiction to make the order of publication itself, a wrong direction dispensing with mailing would make it void. In Spaus v. Schaffner(2 N. Y. Supp. 189) Mr. Justice Ingraham held that an order of publication which directed mailing to the defendant addressed to him at FTew York city 'did not vitiate the order. If a direction in an order of publication against a non-resident to mail the notice to him to a place situated within the State does not vitiate the order, I cannot see how dispensing with mailing could have that effect.

Confessedly sufficient facts were presented to the judge granting the order of publication in the present case to confer jurisdiction upon him to make an order of publication. The only complaint respecting the order is that it dispensed with mailing. Having jurisdiction and having some facts upon which he could properly adjudge that if was improbable that the defendant would receive notice by mail, the order cannot be said to be void.

The defendant bank does not claim to be the owner of the money. All it desires is that it be protected against payment a second time. I think the judgment gives such protection and I, therefore, vote to affirm it.

Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.  