
    Francis Scanlan and Another, as Executors, etc., of Patrick B. Lane, Deceased, Appellants, v. Edward Meehan, Respondent.
    Fourth Department,
    May 5, 1926.
    Banks and banking — money was deposited in joint account, either or survivor to draw — deposit was made for convenience of owner — other party withdrew money — action was commenced before owner’s death — as between parties presumption, if any, arising under Banking Law, § 249, is not conclusive as to ownership — death of owner and substitution of representatives did not change cause of action.
    In an action commenced by plaintiffs’ testator to recover from the defendant money deposited in a bank in the joint names of the plaintiffs’ testator and the defendant, either or survivor to draw, which money was subsequently withdrawn by the defendant, the evidence shows that the deposit was made by plaintiffs’ testator in that particular form for convenience only and not for the purpose of making a gift to the defendant, and any presumption that may arise under section 249 of the Banking Law as between the parties themselves by reason of the form of the deposit is not conclusive as to the ownership of the fund.
    The substitution of the executors of the testator after his death did not change the cause of action and, therefore, it was error for the court to dismiss the complaint.
    Appeal by the plaintiffs, Francis Scanlan and another, from an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 6th day of May, 1925, granting defendant’s motion to dismiss the complaint on the opening of counsel, and also from a judgment entered in said clerk’s office on the same day pursuant to said order.
    
      W. J. & W. E. McClusky [W. E. McClusky of counsel], for the appellants.
    
      Charles V. Byrne, for the respondent.
   Per Curiam.

The appeal is from an order dismissing the complaint for insufficiency upon a motion made at the trial, and from the judgment entered thereon. The complaint in substance alleges that Patrick B. Lane deposited $5,000 of his own money in the Syracuse Savings Bank in the joint name of himself and defendant, either or survivor to draw; that the deposit was made in that form, not as a gift but for convenience only; that defendant fraudulently and without Lane’s knowledge and consent drew the money out of the bank, appropriated it to his own use and refused to return it. The action was brought by Lane as plaintiff in his lifetime. After his death the present plaintiffs were duly substituted. The decision seems to have rested on section 249 of the Banking Law. We are of the opinion that as between the parties themselves, the presumption, if any, arising from the making of the deposit in the form mentioned is not conclusive as to the ownership of the fund; and that the death of Lane after the commencement of the action in no wise changed the cause of action. There seems to be no direct authority on the question, but see dicta in Havens v. Havens (126 Misc. 155,170; affd., 215 App. Div. 756) and in Heiner v. Greenwich Savings Bank (118 Misc. 326, 328).'

The judgment and order should be reversed on the law and a new trial granted, with costs to the appellants to abide the event.

.All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment and order reversed on the law, and new trial granted, with costs to appellants to abide event.  