
    (69 Hun, 398.)
    MARS v. ALBANY SAV. BANK.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    Action to Recover Deposit—Substitution of Defendants—Affidavit.
    In an action against a bank by an administratrix to recover a deposit made by her intestate, the bank filed an affidavit that the deposit was claimed by certain persons as a gift, and asked that they be substituted •as defendants. The affidavit, stated that such claimants presented to defendant copies- of orders pm-porting to be signed by intestate, directing the. deposit to be paid them as per accompanying pass book, and that they said the orders, together with the pass book therein referred to, were delivered to a certain person, with directions to deliver them to < claimants on the death of intestate. The affidavit further stated" that affiant was informed by claimant’s attorney that the orders were delivered to' claimants, as directed, but that for some reason, unexplained to affiant, the pass book came into the possession of intestate before liis death, and subsequently came into the possession of plaintiff. ZTeld, that in the absence of the original orders, or any proof by affidavit of claimants or the person to whom the orders and pass book were delivered, there was nothing authorizing the presumption of gift, and an order for substitution of parties was properly denied.
    Appeal from special term, Albany county.
    Action by Louise F. Mars, administratrix of John H. Mars, deceased, against the Albany Savings Bank, to recover a deposit. From' an order denying a motion for the substitution of parties defendant, defendant appeals.
    Affirmed.
    For former report, see 19 N. Y. Supp. 791.
    The affidavit used on the motion was as follows:
    “Theodore Townsend, of the city of Albany, being duly sworn, says that he is the treasurer of Albany Savings Bank, the defendant in the above-entitled action; that said action has been brought and is now pending in this court to recover from said Albany Savings Bank the sum of seven hundred and seventy-three dollars and seventy-two cents, ($773.72,) now on deposit, in said bank, with interest thereon, and claimed by the plaintiff in this action to be her property as administratrix; that the complaint herein was served upon said defendant Albany Savings Bank, on the 5th day of December, 1891; that no answer has been interposed to said complaint; that this court was heretofore, and on the 29th day of December, 1891, moved for a: similar order to the one now moved for, which motion was denied, without prejudice to its renewal upon additional proof; that an appeal to the general term of the third department was duly taken from such order of denial, and that on the 2d day of July, 1892, said general term affirmed the order appealed from.
    “The deponent further says that Helen Stanley and Kate A. Judge, who are not parties to said action, prior to the beginning of this suit, but who are, or claim to be, daughters of said John H. Mars, made, and do now make, ■a demand of said bank for the payment to them of said sum sought to be recovered in this action, claiming to be entitled to the same, and to be the lawful owners thereof; that said demand was and is made without collusion with the defendant herein; that the nature of the claims of said Helen Stanley and Kate A. Judge and said plaintiff to said property, so far as known to this deponent, is as follows, namely, that the plaintiff in this action claims the said sum as administratrix of the late John H. Mars, deceased, and that the said Helen Stanley and Kate A. Judge claim the same by- virtue of an alleged gift to them of said fund by the said John H. Mars, deceased, their father, during his lifetime; that heretofore the said Helen Stanley and Kate A. Judge duly presented to said bank, and filed with it, copies of two certain orders, purporting to be signed by said John H. Mars, dated September 15, 1888, directed to the treasurer of said bank, and directing the treasurer thereof to pay to each of .said Helen Stanley and Kate A. Judge, respectively, the sum of one thousand dollars ($1,000) as per accompanying pass book No. 61,883, and then stated to said bank that said orders, together with the pass book therein referred to, were duly delivered to a certain Mrs. Mary Gordon, with directions to deliver the same to said Helen Stanley and Kate A. Judge upon the death of said Mars; that as this deponent was informed by Francis C. Devlin, Esq., the attorney for said claimants, said orders were duly delivered to said Stanley and Judge as directed, but that said pass book, for some purpose unknown to this deponent, and unexplained to it by said claimant or their attorney, came into the possession of said John H. Mars prior to his death, from said Mary Gordon, who failed to repossess herself of the same, and that it subsequently came into the possession of the plaintiff as the administratrix of said John H. Mars; that this suit is brought to recover the balance now due on said account number 61,883, (the account which said orders were drawn against, and which was represented by said pass book number 61,883, which stood in the name of said John H. Mars at tile time of his death,) which said account was, prior to any knowledge on the part of this defendant, or any of its officers, of the claim of said Stanley and Judge thereto, and after the death of said John H. Mars and the appointment of this plaintiff as his administratrix, transferred on its books so as to stand in the name of this plaintiff as such administratrix; that said plaintiff, after her appointment as administratrix, deposited in said account the sum of one thousand eight hundred and thirteen dollars and sixty-two cents, ($1,813.- • 62,) and subsequently, and prior to any notice as aforesaid, drew out said sum, and a further sum sufficient to reduce the balance in said account of one thousand one hundred and eiglity-six dollars and thirty-eight cents, ($1,186.38,) at the time of said John H. Mars’ death, to the sum of seven hundred and seventy-three dollars ánd seventy-two cents, ($773.72,) which latter sum, with interest thereon from July 1, 1891, is still on deposit in said bank, and claimed by the plaintiff herein, and also by the said Helen Stanley and Kate A. Judge; that the sums of money withdrawn from the account as aforesaid, at various times, by Louise F. Mars, as administratrix of John H. Mars, deceased, and amounting to two thousand two hundred and fifty dollars, ($2,250,) the sum of one thousand eight hundred and thirteen dollars and sixty-two cents ($1,813.62) was, and was considered and intended to be, by said Albany Savings Bank, a part of, and taken from, the sum deposited to the credit of said account by said Louise F. Mars, as administratrix, etc., and only the balance of the money so withdrawn, or the sum of four hundred and thirty-six dollars .and thirty-eight cents, ($436.38,) was taken from the amount on deposit in said bank to the credit of said account at the time of the death of said Mars, and accrued interest thereupon, and that the sum now on deposit in said bank is the balance of the sum on deposit in said bank to the credit of John H. Mars, deceased, at the time of his death.
    “And deponent further says that the defendant has no interest in the question to whom said debt or deposit belongs, and is ignorant of the grounds and merits of the respective claims made to said fund or debt, except as above set forth, and does not know to which of the claimants thereof it may safely pay said fund or debt, or which of them is legally entitled to the same, and believes said claims to be made in good faith, and offers to pay the said sum so claimed into court, or to such person as this court may direct.”
    Argued before MAYHAM, P. J., and PUTNAM, J.
    Tracey & Cooper, (James Fenimore Cooper, of counsel,) for appellant.
    Chase & Delehanty, (Norton Chase, of counsel,) for respondent.
   MAYHAM, P. J.

We fail to see that the material facts on this motion differ in any essential particular from those presented on the former motion in this case. The presentation to the defendant of what purported to be copies of orders purporting to have been made by the testator, unaccompanied by any originals or the original pass book, and the hearsay account of the attorney for Stanley and Judge of the alleged deposit of the order and pass book with Mary Gordon, carries with it very little weight, and furnishes no evidence on which either the defendant or the court is authorized to presume a gift by the intestate, either inter vivas or causa mortis, in the absence of the original orders or any proof on this motion by affidavit of Stanley or Judge or Gordon, all of whom are presumed to be living, and one of whom, at least, competent to testify upon this subject of the genuineness of the adverse claim of Stanley and Judge for this money. Such evidence could have been obtained on this motion, if attainable, or its absence could at least have been accounted for, if this adverse claim is based upon any substantial grounds. On the whole, we do not think the case essentially different from the one disposed of by this court on a former motion, and see no reason for changing the views expressed in that case. We cannot agree with the contention of the learned counsel for the appellant, that the law upon this subject, as declared in this department, is different from that in other departments in this- commonwealth. The opinion of Learned, P. J., in Williams v. Insurance Co., 8 N. Y. St. Rep. 567, which is followed in this case, is in harmony with that of Van Brunt, P. J., in Bank v. Yandes, 44 Hun, 58, and O’Brien, J., in Feldman v. Grand Lodge, (Sup.) 19 N. Y. Supp. 73, and is not in conflict with, but distinguishable from, most of the cases cited by the learned counsel for the appellant.

Order affirmed, with $10 cost and printing disbursements.

PUTNAM, J., concurs in result.  