
    John Cunningham, App’lt, v. William B. Davenport, Public Administrator, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Gist—Tbtjst.
    A deposit, in a savings bank, to the credit of the depositor in trust for another operates to transfer the fund to the beneficiary prima facie and, in the absence of other proof showing a contrary intent, the self-constituted trustee holds the fund as trustee for the benficiary.
    Appeal from a judgment in favor of defendant
    
      J. Stewart Boss, for app’lt; Charles TI. Otis, for resp’t,
   Barnard, - P. J.

The plaintiff, in 1869, opened an account in his own name with the Bowery Saving’s 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 case of Mabie v. Bailey, 95 N. Y., 206 ; Willis v. Smyth, 91 N. Y., 300; Matter of Crawford, 113 N. Y., 560; 23 St. Rep., 722.

In the ease 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; 27 St. Rep., 405, 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 twenty 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 sixteen years after the son became of age.

The judgment should, therefore, be affirmed, with costs.  