
    George Grafing, Plaintiff, v. The Irving Savings Institution, Defendant.
    (Supreme Court, Kings Trial Term,
    January, 1902.)
    Savings bank — Payment to the executrix o£ Diedrich Grafing of a deposit in the name of' “ Diedrick or George Grafing ”.
    A savings bank is protected in paying a deposit, in the name of “ Diedrick or George Grafing ”, to the executrix of Diedrich upon presentation by her of the passbook, her letters testamentary and check', where it appears that up- to that time George Grafing had never made claim to or demand for the deposit, had never deposited or withdrawn any moneys from the fund and had never had the passbook.
    Action to recover the amount of a deposit.
    Lewis S. Goebel, for plaintiff.
    Deyo, Duer & Bauerdorf, for. defendant'.
   Betts, J.

Prior to April 10, 1893, one Diedrich Grafing had an account amounting to $1,000 on deposit with the defendant,' which account he closed that day by balancing it and opening a new account with the said $1,000 in the same bank in the name of Diedrick or George Grafing.” Subsequently the said Diedrich Grafing made an additional deposit and drew out two different amounts. Diedrich Grafing died on or about. the 20th day of August, 1894. On October 8, 1894, Adelaide D. Grafing, as executrix of Diedrich Grafing, presented the passbook and a certificate of letters testamentary issued to her under the last will and testament of said Diedrich Grafing and a check or draft upon said bank for $2,000, and the defendant paid this amount to her and closed the account, retaining the passbook.

George Grafing, the plaintiff, never deposited any funds in this account nor drew anything therefrom, never had possession of the passbook nor was he shown to have made any demand on the bank prior to this payment or to have given it any notice of his claim to said fund prior to said payment. He brings this action against the defendant for the amount of said deposit, the sum of $2,000.

The plaintiff’s title to the amount secured by this bank book cannot be upheld as a gift:

“ The elements necessary to constitute a valid gift are well understood and are not the subject of dispute. There must be on the part of the donor an intent to give, and a delivery of the thing given, to or for the donee, in pursuance of such intent, and on the part of the donee, acceptance. * * * The delivery may be symbolical or actual, that is, by actually transferring the manual custody of the chattel to the donee, or giving to him the symbol which represents possession. In case of bonds, notes or choses in action, the delivery of the instrument which represents the debt is a gift of the debt, if that is the intention; and so, also, where the debt is that of the donee it may be given, as has been held, by the delivery of a receipt acknowledging payment. Westerlo v. DeWitt, 36 N. Y. 340; Gray v. Barton, 55 id. 72; 2 Schouler Pers. Prop., § 66, et seq. The acceptance, also, may bé implied where the gift, otherwise complete, is beneficial to the donee. But delivery by the donor, either actual or constructive, operating to divest the donor of possession of and dominion over the thing, is a constant and essential factor in every transaction which takes effect as a complete gift. Anything short of this strips it of the quality of completeness which distinguishes an intention to give, which alone amounts to nothing, from the consummated act, which changes the title. The intention to give is often established by most satisfactory evidence, although the gift fails. Instruments may be ever so formally executed by the donor, purporting to transfer title to the donee, or there may be the most explicit declaration of an intention to give, or of an actual present gift, yet unless there is delivery the intention is defeated.” Beaver v. Beaver, 117 N. Y. 421, 428, 429; Matter of Bolin, 136 id. 177.

I find nothing in the evidence that would constitute these parties joint owners of this fund, nor do I find any decision so holding under similar circumstances, nor do I think the form of deposit was such as to put defendant on inquiry as to any claim of plaintiff. Its dealings had all been with Diedrich Grafing, and on presentation of the passbook, in accordance with its rules, by his executrix, payment by it would seem to be the natural and ordinary way for it to close the account.

Assuming then that no gift has been established in this action, the only inquiry that remains is whether the form of the deposit created a trust on the part of Diedrich Grafing for the benefit of his brother, George Grafing. It is claimed by the plaintiff that Diedrich Grafing was by the form of said deposit constituted a trustee as to it for said George Grafing, that it created a trust. If that were so, it would be necessary in order for the plaintiff to maintain this action to establish that a demand was made upon the defendant for the amount of this deposit by the plaintiff, George Grafing, or some one for him prior to the payment by the defendant to the executrix of Diedrich Grafing.. The defendant’s evidence is positive that no demand was made prior to the said payment. The plaintiff’s evidence is very unsatisfactory as to whether any demand at all was made and if so by whom or when.

The courts have held that even if a trust was created, that payment by the bank to the executor or administrator of the trustee was a good payment, if made prior to a demand made or notice given not to pay by the cestui que trust. Boone v. Citizens’ Savings Bank, 84 N. Y. 83; Schluter v. Bowery Savings Bank, 117 id. 125.

Hence holding as I do that no demand upon the defendant, or notice given to it hy the plaintiff of claim of ownership prior to the payment of the fund in question was shown, it is unnecessary to determine in this action whether a trust was created by this form of deposit or not, and it therefore follows that this action cannot be maintained.

Judgment ordered for the defendant.

Judgment for defendant.  