Opinion
October 31, 1941.
Appeal from Surrogate's Court of Bronx County.
Present — Martin, P.J., Glennon, Untermyer, Dore and Callahan, JJ.; Untermyer and Dore, JJ., dissent and vote to reverse and dismiss the petition; dissenting opinion by Untermyer, J.
Decree, so far as appealed from, affirmed, with costs. No opinion.
There was never a delivery of the pass book coupled with an intention to make a gift of the bank account which it symbolized to the petitioner. Delivery to Miss Nolan, concededly the agent of the deceased, for the purpose of securing information at the bank did not constitute delivery to the petitioner. ( Vincent v. Rix, 248 N.Y. 76.) Ultimately, the pass book was delivered to the petitioner only to create a joint account and with a written application for that purpose. The petitioner received the pass book on these terms and recognized the purpose for which it was delivered by attempting to create a joint account at the bank. That attempt failed because of the intervening death of the deceased. ( Augsbury v. Shurtliff, 180 N.Y. 138; Matter of Cuggino, 253 App. Div. 132; affd., 279 N.Y. 692.)
The decree should be reversed and the petition dismissed.
Dore, J., concurs.