by a court or judicial officer. Personal trusts are not excepted in above section. Opinion of attorney-general filed September 30, 1884, in the banking department. 26. An opinion by the attorney-general, dated September 24, 1892, was filed in the banking department, in which he states that section 9, chapter 399, Laws of 1892, provides: "No safe deposit company, bank or other institution, person or persons holding securities or assets of a decedent, shall deliver or transfer the same to the executors, administrators or legal representatives of said decedent, unless notice of the time and place of such intended transfer be served upon the county treasurer or comptroller, at least five days prior to said transfer."

He held that a deposit in a savings bank to the credit of a deceased depositor is an asset within the meaning of such section, and the same should not be transferred to the representatives of the deceased until the required notice is given to the county treasurer and the comptroller.

27. A bank whose paying teller knowing the depositor by name, pays out without inquiry entire account to a stranger who has the book is liable for negligence. Geitelsohn v. Citizens' Savings Bank, 20 Misc. 84, 45 N. Y. Supp. 90.

28. Code, section 1917, requiring indemnity on lost instruments, does not apply to savings bank book, and no bond can be required except by special agreement. Usual rules not applicable to peculiar facts. Mills v. Albany Exch. Savings Bank, 28 Misc. 251, 59 N. Y. Supp. 149.

29. A depositor made his mark as signature, and another person produced the book and was identified by a third person as the real depositor. Held, that verdict against the bank for payment to such other person without consent of depositor was proper; the degree of care by bank being a question of fact. Rosen v. State Bank, 32 Misc. 231, 65 N. Y. Supp. 666.

30. A wife deposited her husband's wages in her name and in his presence. Held, to belong to her estate upon her death and not to husband. Kopf r. Dry Dock Savings Inst., 32 Misc. 35, 65 N. Y. Supp. 364.

31. A grandfather opened an account for his infant grandchild in the names of both. The father of infant produced the bank book and bank paid him the account. Subsequently the guardian of the infant sued the bank. Held, that bank was liable for its negligence although it had a printed rule in book that deposits were properly payable to holder of the book. Ficken v. Em. Ind. Savings Bank, 33 Misc. 92, 67 N. Y. Supp. 143.

32. Where the same person was treasurer of savings bank and cashier of a national bank occupying same offices, took up savings bank books of depositors getting their receipts to the savings bank, and returned pass books purporting to be of national bank. Held, the savings bank was not liable for these moneys which were actually stolen by the treasurer. Kelley v. Chenango Valley Savings Bank, 22 App. Div. 202, 47 N. Y. Supp. 1041.

33. Payment; peculiar facts surrounding a special payment on production of book. Hale v. Seamen's Bank for Savings, 28 App. Div. 407, 51 N. Y. Supp. 140. 34. A rule that "on death of depositor money shall be paid to legal representative" and "that payment to one producing bank book shall be valid payment." Held, that the latter rule did not apply after death of depositor or after bank knew of death, and that then payment to holder of book must rest on a legal title to book by the person producing it. Podmore v. South Brooklyn Savings Inst., 48 App. Div. 218, 62 N. Y. Supp. 961.

35. A bank had a rule printed in pass book to the effect that valid payment would be made to bearer of book, with or without written order, and "the book is the order of withdrawal." Depositor gave book for keeping to her husband who said he lost it. She failed to notify bank, and did not sign the orders on which bank paid. Held, bank not liable to her for payments made on book under these circumstances. Waiter v. Williamsburgh Savings Bank, 68 App. Div. 193, 74 N. Y. Supp. 140.

36. One Diedrich Grafing had $1,000 in a savings bank, and changed the account to "Diedrich or George Grafing," made additional deposit, and withdrew some moneys. Upon his death his executrix presented the book and was paid the balance. Then George Grafing, after such payment, never having possession of the book, nor made any deposit, nor previous demand for the funds, demanded payment. Held, that payment to executrix was proper. Grafing v. Irving Savings Inst., 69 App. Div. 566, 75 N. Y. Supp. 48, aff'g 37 Misc. 20, 74 N. Y. Supp. 741.

37. A depositor in New York bank, residing in New Jersey, died there and an administrator was appointed in that State to whom bank paid the account, he having the book. An administrator had been appointed in New York five months before New Jersey appointment. Subsequent to payment the latter administrator demanded the deposit. It did not appear that there were any New York creditors. Held, the bank was not liable to the New York administrator. Maas v. German Savings Bank, 73 App. Div. 524, 77 N. Y. Supp. 256, rev'g 36 Misc. 154, 72 Y. Supp. 1068.

38. Payment by a savings bank to a person not entitled to receive the deposit, though he may have possession of the pass book and present it at the time of payment, will not discharge the bank, unless it exercised at least ordinary care and diligence in paying the money to the wrong person. If at the time a fact or circumstance was brought to the knowledge of the defendant's officers, which was calculated to and ought to have excited suspicion and inquiry of an ordinarily careful person, it was clearly their duty to institute such inquiry, and their failure to do so presents a question for the consideration of the jury. When, therefore, the bank set up payment to a person who had produced the pass book and a power of attorney authorizing him to draw the funds of another estate, it was held that the question of the care and diligence of the bank's officers in making a payment under such circumstances were of such a character as to require their submission to a jury. Gearns v. Bowery Savings Bank, 135 N. Y. 559, 32 N. E. 249.

39. Rules of savings banks on payment of funds of deceased depositor construed, and degree of care explained. Mahon v. South Brooklyn Sav. Inst., 175 N. Y. 69, 67 N. E. 118.

40. A woman opens an account in her name in trust for her husband without his knowledge. When he dies she testifies that she meant he should have the funds if he survived her. Held, not a valid trust in favor of husband's estate. Matter of Smith, 40 Misc. 331, 81 N. Y. Supp. 1035.

144. Deposits of minors, and trust deposits, and deposits in the names of more than one person. When any deposit shall be made by or in the name of any minor, the same shall be held for the exclusive

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right and benefit of such depositor, and free from the control or lien of all other persons, except creditors, and shall be paid, together with the dividends and interest thereon, to the person in whose name the deposit shall have been made, and the receipt or acquittance of such minor shall be a valid and sufficient release and discharge for such deposit or any part thereof to the corporation.

When any deposit shall be made by any person in trust for another, and no other or further notice of the existence and terms of a legal and valid trust shall have been given in writing to the bank, in the event of the death of the trustee, the same, or any part thereof, together with the dividends or interest thereon, may be paid to the person for whom the deposit was made.

When a deposit shall be made by any person in the names of such depositor and another person and in form to be paid to either or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons upon the making thereof shall become the property of such persons as joint tenants and the same together with all interest thereon shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.

(Former section 114; R. S. 1567, L. 1882, ch. 409, § 258; L. 1907, ch. 247.) 1. Plaintiff in her own name deposited a certain sum with defendant. In proceedings subsequently commenced against defendant supplementary to an execution against plaintiff's husband, he, she and an officer of the defendant appeared before a referee and were examined. Upon the report of the referee, an order was granted by the court before whom the proceedings were pending, requiring defendant to pay to the judgment creditor the amount of the deposit which order defendant obeyed. In an action to recover the deposit, it did not appear that plaintiff had notice of the application for the order, or that she was heard in reference thereto, or that she was in any way a party to the application. Held, that such payment was no defense, that she was not a party to the adjudication or bound thereby. Schrauth v. Dry Dock Savings Bank, 86 N. Y. 390.

2. An action was brought to determine the title to a deposit made by plaintiff's intestate, one U., with one of the defendants, the Seamen's Savings Bank of the city of New York. Said U., in 1850, deposited a sum of money in said sav

ings bank, which was credited to an account then opened with her, in trust for S. J. U., her daughter. The bank issued a pass book, in which the account was entered as with her, in trust for her said daughter. This deposit was subsequently drawn out. In 1874, U. deposited $2,000 to the credit of said account, which was entered in said pass book. She also, at the same time, deposited $25 to the credit of an account, with her in trust, for a grand-daughter, receiving another pass book therefor, and on the same day she deposited the sum of $2,500 to her own individual account, in the Bowery Savings Bank. U. retained the pass book until her death. In an action to determine the title to the deposit, held, that the transaction disclosed an intention to create a trust for the benefit of the daughter, and that the latter was entitled to the fund. Willis v. Smythe et al., 91 N. Y. 297; sustaining Martin v. Funk, 75 id. 134, 142, 31 Am. Rep. 446. 3. When money is deposited in the name of a wife by her husband as agent, and it is proven that the wife has used part of the money drawn by him as her agent and that she has seen the pass book; held, that the savings bank is justified in paying to said agent. Wilcox v. Onondaga County Savings Bank, 40 Hun, 298.

4. In the absence of extrinsic evidence. A savings bank deposit, entered in the pass book in the name “Michael Smith for Mary Smith," belongs to Mary and goes to her legal representatives. In the names "Michael Smith, Mary Smith, Administratrix," the deposit belongs to Michael's estate. In the names of "Michael and Mary Smith, either to draw," upon the death of Michael followed by that of Mary, the representative of either deceased person is entitled to draw, and the one in possession cannot be compelled to surrender the pass book under § 2712 of the Code of Civil Procedure.

When in the names Michael and Mary Smith," on Michael's death the money vests in Mary, and on her death in Mary's representatives, who hold for the benefit of Michael's estate as far as he was interested in the funds. Smith's Estate, 17 Abb. (N. C.) 78.

5. K. deposited moneys in a savings bank in trust for A., a minor. On K.'s death her administrators were paid the moneys by the bank.

On an action brought by the administrators of A., held, that payment by the bank to K.'s representatives in the absence of any hostile claim was proper.

6. Also held that chapter 371, Laws of 1875 (the above section), does not subvert the right of the bank to pay the representatives of a deceased depositor. That said act was a concession to the legal infancy of minors, but not intended as an abrogation of the bank's right. Schlater v. Bowery, Sav. Bank, 13 State Rep. 413.

7. Accounts were opened "Mary S. Miller in trust William R. Miller," her brother. She had other accounts in her individual name. Held, that on her death in the absence of other facts, the account in trust belonged to her brother. Miller v. Seaman's Bank for Savings, 33 Misc. 708, 68 N. Y. Supp. 983.

8. Where one deposits funds in form in trust for another, and there is the intention to create an actual trust, it is irrevocable. When changed to another beneficiary the first beneficiary is entitled to the funds. Evidence of intention construed. Decker v. Union Dime Savings Inst., 15 App. Div. 553, 44 N. Y. Supp.

521.

9. Where one deposits money in form in trust for another without any inten

tion to give a beneficial interest to the other, the depositor does not lose title to the fund. Matter of Mueller, 15 App. Div. 67, 44 N. Y. Supp. 280.

10. A woman had an account "in trust for" her husband, she retaining book and collecting interest. The husband died first and his representative collected the account from bank. Later the widow died, and her representative sued bank. Held, the latter could not recover. Bishop v. Seaman's Bank for Savings, 33 App. Div. 181, 53 N. Y. Supp. 488.

11. Right of survivorship to an account in two names is not to be presumed, but to be determined by facts of the case. De Puy v. Stevens, 37 App. Div. 289, 55 N. Y. Supp. 810.

12. A deposit in form "William Williams in trust for Owen Williams is a trust for Owen in the absence of explanatory evidence, although the former retains the bank book, and draws some of the account, and the latter lives abroad and does not know of the account. Williams v. Brooklyn Savings Bank, 51 App. Div. 332, 64 N. Y. Supp. 1021.

13. A woman opened an account in her name "in trust for John T. Scallan," and retained bank book until the day she died, and on that day handed the book to the person named as her executrix. Held, that these facts, with proofs of declaration by depositor to declare a trust, justified the finding of a trust for said Scallan. Scallan v. Brooks, 54 App. Div. 248, 66 N. Y. Supp. 591.

14. Accounts were opened in savings banks by husband and wife as Christopher and Mary Meehan," "Mary J., and Christopher Meehan," and "Christopher or Mary Meehan." Meehan gave his wife moneys to deposit from time to time; she drew some money; Meehan had access to the books at all times, and had declared that these accounts were to go to his wife on his death. Held, that on husband's death the accounts became the property of his widow. Matter of Meehan, 59 App. Div. 156, 69 N. Y. Supp. 9.

15. Depositor had an account in his name and at least some of it was his money when deposited; it was changed to joint account of himself and his daughter. Upon his death the daughter withdrew the account. Held, that it was not necessarily under the special circumstances, the property of the daughter, but became a question of fact determinable by a jury. Wood v. Zornstorff, 59 App. Div. 538, 69 N. Y. Supp. 241.

16. A woman deposited sums in her name "in trust for son Thomas" and "in trust for son John " stating alleged ages which would make their birth after she was 52 years old. She had declared to others that she never had children, and there was no proof that children were ever born to her. Held, that the deposits belonged to her estate and her administrator was entitled to them. Washington v. Bank for Savings, 65 App. Div. 338, 72 N. Y. Supp. 752, aff'd 171 N. Y. 166, 89 Am. St. Rep. 800, 63 N. E. 831; see, also, Washington v. Seaman's Savings Bank, 29 Misc. 492, 61 N. Y. Supp. 971.

17. Depositor in savings bank withdrew her account and immediately deposited the amount in the joint names of herself and of a woman present with her, went to Europe, and died abroad. Held, a question of fact for the jury as to what were the intentions of depositor, under the circumstances. Gansberg v. Sagemohe, 67 App. Div. 554, 73 N. Y. Supp. 984.

18. See also presentation of authorities in editorial note to Cunningham v. Davenport, 32 L. R. A. 373, on “effect of depositing money in bank in trust for third person."