
    David Ahearn, as Administrator, etc., of Mary Ann Ahearn, Deceased, Respondent, v. The Bowery Savings Bank, Defendant, Impleaded with May Soper, Appellant.
    First Department,
    December 4, 1914.
    Decedent’s estate—action by administrator to recover deposit alleged to belong to decedent — gift — trust — admission in pleading not binding upon infant.
    Where, in an action by an administrator to recover a deposit, it appears that the decedent had an account in the defendant bank; that she duly executed a draft for the payment of any balance in favor of one S., bearer; that such draft was recognized by the bank which credited the funds to the new account of S., in trust for the decedent, and that the trustee was disclosed by the instrument to be an infant, the defendant S. should be allowed to introduce evidence tending to establish an absolute gift of the money to her.
    Since the bank recognized the draft and transferred the funds to the new account opened by the payee, S., she thus became vested with absolute title to the fund in question.
    An admission in a pleading made by a guardian ad litem is not binding upon the infant.
    Appeal by the defendant, May Soper, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1914, upon the decision of the court after a trial at the New York Special Term.
    
      William F. McCormack, for the appellant.
    
      Mann Trice, for the respondent.
   Dowling, J.:

Appeal from a judgment determining that a deposit of $1,039.98 in the Bowery Savings Bank standing to the credit of May Soper, as trustee, belonged to the estate of Mary Ann Ahearn, deceased, and that plaintiff as administrator of such estate was entitled to immediate possession and control of said deposit. It appears that the intestate, Mary Ann Ahearn, had a deposit in the Bowery Savings Bank which on March 27, 1913, amounted to $1,319.97. On that date she signed and acknowledged a draft upon said hank, directing it to pay to May Soper or bearer the balance of said account. Upon the production of said draft the bank opened a new account in the name of May Soper, in trust for Mary Ann Ahearn, and the signature card signed by May Soper upon the deposit in her account as trustee of the balance of $1,319.97 showed that she was a minor, being under eighteen years of age. In the blank space required to be filled out for the opening of trust accounts, the words “Mary A. Ahearn” were written in, as designating the cestui que trust, but where the signature of the beneficiary was required to be placed the signature was that of May Soper. Thereafter, May Soper withdrew various sums of money from this account, leaving the balance which is now in question. It is the contention of the plaintiff that under these conditions title of the deceased in the funds was never divested; that the trust created in defendant Soper was a passive trust only, and was void. The trial court refused to allow any proof by defendant Soper that the decedent had made a valid gift of this fund to her. While the court denied a motion for judgment on the pleadings, in view of the record and the refusal to allow defendant Soper to make her proof of a gift when duly offered, this judgment can be sustained only if upon the pleadings the plaintiff was entitled to judgment. We think such was not the case. Plaintiff relies upon the admission contained in the answer of the defendant of the allegation of the complaint that the deceased “ caused or permitted the monies standing to her credit in the Bowery Savings Bank to be changed and credited to the account of May Soper, in trust for Mary Ann Ahearn. ’’ But the very answer containing such admission showed upon its face that the pleader was an infant, it being made on her behalf by her guardian ad litem and verified by him, and it has been held by this court that an admission made in a pleading is not binding upon an infant. (Bates v. Virolet, 33 App. Div. 445; Murphy v. Holmes, 87 id. 370.) All that the plaintiff proved was that the decedent had an account in the Bowery Savings Bank; that she duly executed a draft upon said bank for the payment of any balance in said account in favor of May Soper, bearer, that such draft was recognized by the bank which credited the funds at once to the new account of May Soper, in trust for Mary Ann Ahearn, the trustee being disclosed by the very paper purporting to create a trust, to be an infant. While under some circumstances, as a matter of law, such a draft even when not effectuated by the transfer of the money, will operate as an equitable assignment of the fund (Foley v. New York Savings Bank, 157 App. Div. 868), in this case the bank recognized the draft and transferred the funds to a new account opened by the payee of the draft, the defendant Soper. The defendant Soper thus became vested with absolute title to the fund in question. Being the owner of the fund, and it being sought to attach a trust relationship to it -under conditions which do not appear, May Soper then and still being an infant, has repudiated and disavowed the trust sought to be attached to the fund so deposited, and claims the same as her own. Under these conditions, and in view of the pleadings, not only should the defendant Soper have been permitted to establish the absolute gift of the money to her, and her claim that such gift was an unqualified one, but it was incumbent upon the plaintiff, as well, to establish the creation of a valid trust to be executed by the trustee, which he has failed to do. The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to- the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred..

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  