
    Louise F. Mars, Adm’rx, Resp’t, v. The Albany Savings Bank, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    Interpleader—Gut.
    In an action by an administrator to recover a savings bank deposit, an affidavit alleging the presentation to the bank of what purported to be copies of orders made by the intestate, unaccompanied by any originals or the pass book, and that the deponent was informed by the attorney for the persons making such presentation that the orders and pass book had been deposited ■with a third person, is insufficient to authorize an order of inter-pleader, as such statements furnish no evidence authorizing a presumption of a gift by the intestate either inter vivos or causa mortis in the absence of the original orders or proof by affidavit of said claimants or said depositary.
    Appeal from order denying motion by defendant for an order ■substituting Helen Stanley and Kate A. Judge as defendants and discharging the bank from liability on payment of the fund into court.
    The following is the affidavit upon which the motion was made:
    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 drdy 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 the 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 eighty-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 and 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 álso 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.
    
      Tracey & Cooper (James Fenimore Cooper, of counsel), for app’lt; Chase & Delehanty (Norton Chase, of counsel), for resp’t.
   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 vivos 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 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. Etna Life Ins. Co., 8 St. Rep., 567, which is followed in this case, is in harmony with that of Van Brunt, J., in Nassau Bank v. Vandes, 44 Hun, 58; 8 St. Rep., 415, and O’Brien, J., in Feldman v. Brand Lodge, 46 id., 122, and is not in conflict with, but distinguishable from, most of the cases cited by the learned counsel for the appellant.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs in result; Herrick, J., not acting.  