
    Friedrich Magdeburg, Appellant, v. The Dry Dock Savings Institution, Impleaded with Anna Gramcko, as Executrix, etc., of Marie Magdeburg, Deceased, Respondent.
    Second Department,
    December 21, 1911.
    Banks — deposit by a married woman — evidence — presumption — transaction with a decedent.
    Deposits made in a savings bank by a woman since deceased in an account opened by her in her own name will be presumed to consist of funds which were lawfully in her possession.
    In an action brought by the husband of the deceased depositor in which . he seeks to establish.that the bank deposit consisted of funds wrongfully taken by his wife from the receipts of his business, he is incompetent, under- section 839 of the Code of Civil Procedure, to testify as to the time when he first discovered that his wife had the deposit.
    Appeal by the plaintiff, Friedrich Magdeburg, from a judgment of the Supreme Court in favor of the defendant Anna Gramcko, as executrix, etc., entered in the office of the. clerk of the county of Kings on the 12th day of April, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.
    
      
      August P. Wagener, for the appellant.
    
      Charles E. Travis [George W. Smyth with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff in this action was the husband of Marie Magdeburg, deceased, and this action was originally brought against the Dry Dock Savings Institution to recover $2,896.18 held on deposit by the savings institution, and' which sum was alleged to have been wrongfully taken from the receipts of the plaintiff’s business as a baker during a series of years and converted to the use of the decedent. Anna Gramcko, as executrix of the last will and testament of Marie Magdeburg, was subsequently brought in as a defendant, claiming title to the deposit, and the amended complaint sets up the same cause of action alleged in the first instance. Upon the trial' of the action, which is brought in equity, the learned court found the facts in favor of the defendant and awarded judgment accordingly. The plaintiff appeals to this court.

The underlying presumption of honesty gives character to the deposit in the name of Marie Magdeburg in the Dry Dock Savings Institution; she is presumed to have been lawfully in possession of the funds deposited from time to time, and the plaintiff must, to be entitled to relief, overcome that presumption. He must produce evidence which not only raises a suspicion against the integrity of his deceased wife, but he must establish, as a fact, that she did not own the money; that the money belonged to him, and that he nevér parted with the title thereto. Tried by this test, the evidence utterly fails to establish the cause of action asserted. While it is possible that,.as to a very, small portion of the fund, there was evidence from which the inference might be drawn that moneys which plaintiff’s wife had taken from the cash drawer of one of plaintiff’s bakeries entered into the deposit, there was no evidence whatever that she took this money without permission from her husband, or without his knowledge and acquiescence, and the witness was so contradictory and uncertain in her testimony, and her story is so highly improbable, that no trier of facts would be bound to accept it as being true.- As to the-great bulk of the fund, there is not the slightest evidence that any part of it ever came, into the possession or ownership of the plaintiff in any manner or form. It is true that there is some-testimony to the effect that the plaintiff’s wife took money from the cash drawer almost daily, but there is also evidence that she had charge of the. housekeeping, that she paid the help about the bakery, etc., and there is no evidence that the sums which she took from time to time were in excess of those which she paid out in Conducting the household affairs and in paying the help about the bakery. Neither is there any evidence that the plaintiff did not pay his wife for her services in connection with the business or that he did not give her sums of money. .There was some effort to establish that the plaintiff’s wife had no separate business and that she did not earn any money* of her own; but this was a mere farce in so far as there was any. testimony at all. It is stated hy counsel for plaintiff that it was “proved positively that the deceased had no-separate business, calling or occupation,” and reference is made to folio 107.' Turning to this folio we find one of plaintiff’s witnesses- testifying: “ I have known her from the time she was ten years old to the time she died. I never knew her to be engaged in any business.” This same witness on cross-examination says that for nearly twenty years she did not see Mrs. Magdeburg at all, and that there was often a period of two years in which she did not see her, and yet it is claimed that it is “proved. positively that the deceased had no separate- business, calling or occupation,” upon the testimony of this woman who had known her since she was ten years old and had not seen her for a period of nearly twenty years at one time, and had several intervals in which she did not see her for two years.. This same witness testified on cross-examination that the decedent had been married twice before she married the plaintiff and that she did not know whether either of these husbands had left- her money or life insurance, so that the case is absolutely without evidence to support the cause of action alleged and could not have been strengthened if the plaintiff had been permitted to answer the questions relating to the time that he first discovered that his wife had these deposits. The questions weré properly excluded under section 829 of the Code of Civil Procedure as construed by the court in Richardson v. Emmett (170 N. Y. 412, 417), and the learned court at Special Term has properly disposed of the case.

The judgment appealed from should be affirmed, with costs.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment affirmed, with costs.  