
    Matilda Ackerman, Adm’rx, App’lt, v. Mary A. Herrick, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Venue—Convenience of witnesses.
    The action was brought to recover certain moneys alleged to be represented by three savings bank books, one of which was issued to plainiifi’s intestate in his name in trust for defendant by a bank in Newburgh, and the others by a bank in Kingston; the deposit in one case being made in defendant’s name, and the other in that of decedent and indorsed in case of his death to defendant. Defendant claimed that the latter hook was delivered to her by decedent. Meld, the transaction in the case of the latter book having taken place in Ulster county, the place of trial was properly changed to that county on the ground of the convenience of witnesses.
    Appeal from-order changing the place of trial from Orange to Ulster county.
    Action brought by the widow of John K. Ackerman, deceased, as administratrix, to recover the sum of $7,860,82, represented by three savings bank books, two of which were issued to decedent by the Ulster County Savings Institution, of Kingston, and the other by the Newburgh Savings Bank.
    
      William D. Dickey, for app’lt; J. E. & J. G. Van Etten, for resp’t.
   Barnard, P. J.

There is nothing in the papers which tends to invalidate the title of the defendant to the Newburgh savings bank book. The deceased, intestate, made the deposit and took a book in the name of “ J. K. Ackerman in trust for Mary A. Herrick.” This raises an inference of an intent to give the money and create himself, the depositor, the trustee of the donor. Martin v. Funk, 75 N. Y., 134; Mabie v. Bailey, 95 N. Y., 206.

One of the other bank books was deposited in the name of'the defendant, and there is nothing stated in either the complaint or .affidavits which constitute any claim by the administratrix to it. The other book represents deposits made by the deceased in his own name. This book contains this indorsement. “ Jn case of my death to my daughter, Mary Ann Herrick, Kingston, January 1, 1890.” The defendant states in her affidavit that this book with its indorsement on it, was delivered to her at about the date of the assignment. If this was so and she agreed to pay the interest to the deceased for his life, the gift would be complete. Young v. Young, 80 N. Y., 422.

This transaction is one which arose in Ulster county and requires the witness to the transfer as well as such, if any, besides the defendant who can testify to the delivery of the book in January, 1890.

The order changing the place of trial from Orange county to Ulster was therefore right and the order should be affirmed, with costs and disbursements.

Pratt, J.

This is an appeal from an order changing the place of trial of an action from Orange to Ulster county.

There is not such a preponderance of evidence in the affidavits that we are enabled to say there was such an abuse or misuse of discretion in the court below as to warrant us in reversing the order.

The respondent claimed and seemed to have a large number of witnesses whose convenience would be promoted by a change of venue, and we cannot say that she would not be entitled to produce them upon the trial even if the appellant should stipulate to admit copies of the bank books.

Considering all the facts and circumstances, we think the order should be affirmed, without costs.

Order affirmed, without costs.

Dykman, J., concurs.  