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and 121 New York State Reporter (92 App. Div. 529.)

FARRELLY V. EMIGRANT INDUSTRIAL SAV. BANK et al.

(Supreme Court, Appellate Division, First Department. March 18, 1904.)

1. SAVINGS BANKS_JOINT OWNERSHIP OF DEPOSIT_RIGHTS OF SURVIVOR.

Where two persons own jointly a deposit in a savings bank, the survivor

becomes vested with the ownership of the entire fund. 2. SAME-POSSESSION OF PASSBOOK.

Where a savings bank deposit is in joint names, and the intent appears to create a joint tenancy, the survivor takes title to the entire fund, irre

spective of whether he ever had any possession of the passbook. 3. SAME-CREATION OF JOINT TENANCY-EVIDENCE.

Where a mother, who had a deposit in a savings bank to her credit, caused the account to be so changed as to read, "In account with S. or son F.," and shortly before her death she delivered the book to a third person, telling her to keep it for the son, the facts sufficiently showed that

the mother intended to make the son a joint owner in the account. 4. SAME-SURVIVORSHIP_EVIDENCE.

On an issue as to whether a son, who had been a joint owner with his mother in a savings bank deposit, had survived the mother, evidence held insufficient to show such survivorship.

Appeal from Special Term.

Action by Thomas Farrelly, as temporary administrator of the estate of Frank J. Smith, deceased, against the Emigrant Industrial Savings Bank and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Lawrence E. Brown, for appellant.
James J. Fitzgerald, for respondents.

HATCH, J. This action was brought to determine the ownership of a fund deposited in the defendant savings bank by Margaret Smith, The account appears to have been opened in her name on the 13th day of October, 1874, upon which date a deposit was made of $1,900, and a passbook issued to her. She thereafter appears to have made deposits in various amounts in the account down to about July 24, 1880, when the passbook was changed at her instance so as to read, “In account with Margaret Smith or son Frank J." Several deposits were made thereafter, the last of which was under date of January 6, 1886. The amount of the account upon the 7th day of October, 1903, the date of the trial, was $3,763.49. Margaret Smith, at the time of opening the deposit, was a widow. Her only child was Frank J. Smith. His father died during the early infancy of the son. Many years after the death of her husband Margaret Smith married the defendant Patrick Reilly, with whom she continued to live down to the date of her death, which occurred on the 17th day of April, 1886. At the time of her death the whereabouts of her son Frank J. Smith were unknown, and whether he was alive or dead at that time is not made to appear in this record. A short time prior to the death of Margaret Smith Reilly

1 1. See Joint Tenancy, vol. 29, Cent. Dig. $ 4.

she gave the passbook to her sister Ellen Bannon, with the direction that she keep the same "for Frank, and if her son came back to give it to him.” Subsequently Mrs. Bannon, who has since become and now is hopelessly insane, gave the book to a cousin, who was the wife of Patrick Reilly, but who was not the defendant Reilly, although of the same name. Mrs. Reilly retained the book for some time, and then gave it to her husband. He kept it for many years, when he was directed by the Surrogate's Court to deliver it to the defendant administrator of Margaret Smith Reilly, deceased.

The plaintiff seeks to sustain his right to the fund upon the theory of a gift inter vivos from Margaret Smith Reilly, the mother, to the son Frank J. Smith. The court below held and it may be that the evidence was insufficient to support the action upon the theory of a gift inter vivos. Mack v. Mechanics' & Farmers' Savings Bank, 50 Hun, 477, 3 N. Y. Supp. 441.

There is some authority for holding that the change in the form of deposit by which the son was enabled to draw equally with the mother is evidence of an intent upon the part of the mother to constitute the son a joint owner with her in the fund. Whether the deposit, standing alone, disassociated from any other fact, would have such effect, it is not necessary for us now to determine, and we express no opinion thereon. Taking into consideration, however, the form of the deposit, the delivery of the book, with directions to deliver to the son, it would clearly authorize the court to find that it was the intent upon the part of the mother to vest in the son a joint ownership with her of the money, and, being vested with such ownership, the survivor would take the whole. McElroy v. National Savings Bank, 8 App. Div. 192, 40 N. Y. Supp. 340; Matter of Meehan, 59 App. Div. 156, 69 N. Y. Supp. 9; Mack v. Farmers' & Mechanics' Savings Bank, supra. Mat- . ter of Bolin, 136 N. Y. 177, 32 N. E. 626, is not in conflict with this view. That decision is to be limited to the particular facts upon which it was based. All it decides is that, under the circumstances which were made to appear therein, the only purpose of depositing in the name of both was for matter of convenience, and, such fact appearing, it was held to destroy the force and effect of the deposit in the joint names as constituting a joint tenancy. Where, however, the deposit is in joint names, and the intent appears to create the joint tenancy, its effect is to vest title to the whole fund in the survivor; and under such circumstances, whether the book be delivered to the survivor or not, or whether he ever has had it in his possession during the lifetime of his joint owner, is not of consequence, as the intent existing to create the relation of a joint tenancy title vested in the survivor eo instanti upon the death of the joint owner, and no delivery of anything is necessary to effectuate such result. We think there can be little doubt in the present case but that the intent of the mother was to make her son joint owner with her in the fund, in consequence of which he took immediate title if he survived the mother. It became, however, incumbent upon the plaintiff to show such survivorship, and in this he failed. The only proof given upon the subject was that the son Frank J. Smith visited his mother about ten years before she died. In 1881 she received a letter from him from Denver, in Colorado, as we as

and 121 New York State Reporter sume. So far as it is made to appear, all trace of him since that time has been lost. The mother did not die until the 17th day of April, 1886. There is no evidence showing that upon that date Frank J. Smith was alive; consequently it is not made to appear that he was the survivor of his mother, and therefore the plaintiff shows no title in himself to this fund.

It follows that the judgment was correct, and it should therefore be affirmed, with costs. All concur.

(92 App. Div. 352.)

MILLER V. NORCROSS et al. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. BUILDING CONTRACT-DELAY OF SUBCONTRACTOR-COMPLETION BY CONTRACTOR-RESPONSIBILITY FOR STRIKE.

A strike occasioning delay in the work of plastering a building was not “through no default” of the subcontractor, within the contract, which otherwise allowed the contractor to complete the work at the subcontractor's expense; it having been caused by his language to the plasterer's delegate, in consequence of a dispute with such delegate because of his furnishing plasterers to the contractor to fill up the cracks in plastering which had been done, and which the subcontractor had refused to fill up

on the ground that he was not responsible therefor. 2. MECHANIC's LIEN-AMOUNT DUE SUBCONTRACTOR-EVIDENCE.

Evidence in an action to enforce a mechanic's lien by one who furnished materials to the subcontractor held insufficient to support a finding that work of a certain value only remained undone when the subcontractor

abandoned the work. 3. CONTRACTORS-LIABILITY ON ACCEPTED ORDER OF SUBCONTRACTOR.

A contractor who accepts an order of the subcontractor in favor of a materialman is not liable thereon; there remaining unpaid to the materialman only the amount which under the order was to be paid to him out of the amount due on the last payment to the subcontractor when his work was finished, and no last payment having become due to him, because he abandoned the work, which was completed by the contractor at a cost exceeding the amount which would have been owing the subcontractor, had he completed it. Appeal froin Special Term.

Action by Clifford L. Miller against Orlando W. Norcross and another. From a judgment for plaintiff on a decision of the court, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ.

P. J. Carlon, for appellant Norcross.
Frank L. Crawford, for appellant Lying-in Hospital.
Jacob F. Miller, for respondent.

INGRAHAM, J. This action was brought to foreclose a mechanic's lien filed on behalf of the plaintiff, who had furnished to Mertz & Gibb certain material used in the construction of a hospital in the city of New York, the property of the defendant corporation. The complaint alleges that the defendant corporation, the owner of certain property described, made a contract with the defendant Norcross to erect a hospital upon the property; that Norcross made a contract with Mertz & Gibb whereby Mertz & Gibb agreed to do the mason work and plastering in said building, and to furnish the labor and materials therefor, a copy of which contract is annexed to the complaint; that Mertz & Gibb entered into the performance of that contract, and proceeded with the same until the roth day of April, 1901, when their workmen employed struck and refused to work upon the job, through no fault or wrong of the said Mertz & Gibb; that they applied to said Norcross for an extension of time equivalent to the delay caused or to be caused by the strike, but that said Norcross refused to grant any delay or comply in any way with the said application; that Norcross had demanded of Mertz & Gibb the performance of the work not theirs to do, but which had been left undone, or imperfectly done, by other contractors, and that the refusal of the said Norcross Bros. to grant the desired delay was owing to the refusal of said Mertz & Gibb to do the other contractors' work at their own expense, and that while the strike was continuing the said Norcross Bros. wrongfully took advantage of the situation to try to force Mertz & Gibb to do the work which they had not agreed to do, and which by their contract it was not their duty to do, and wrongfully took away from them the privilege of completing their work, and entered upon the completion of the work themselves with the view and intent of charging all the work undone, whether theirs or not, to the said Mertz & Gibb, so as to absorb the moneys due and to become due to said Mertz & Gibb under the contract; that, at the time of the filing of the notice of lien, Mertz & Gibb had duly performed part of the conditions of said contract on their part to be performed, and so far completed the same as to become entitled at the time of filing of said notice to a payment on account of said contract, and at the time of filing said notice there was due and owing to said contractors and the subcontractors, Mertz & Gibb, from said owner, a sum in excess of the amount of plaintiff's lien therein ; that the plaintiff furnished to Mertz & Gibb certain building materials for and used in the construction and erection of said hospital and buildings on the premises of the owner, which said materials were reasonably worth the sum of $16,020.18; that the plaintiff has been paid the sum of $13,014.80, leaving the sum of $3,005.38, with interest thereon, unpaid. By the agreement between Norcross and Mertz & Gibb, annexed to the complaint, Mertz & Gibb agreed to provide all the materials for, and perform in a good and workmanlike manner, under the direction of Norcross, and according to the drawings and specifications of Robertson, architect, all the work mentioned as set forth in said drawings and specifications, which are to be considered as forming a part of this agreement; and they further agreed to commence the work as soon as required by, and carry it forward as rapidly as permitted by, the progress of the building, and to complete it in season not to delay the finishing of the building, "provided he is not obstructed or delayed in the prosecution or completion of his work by the act, neglect, delay or default of the said first party, or of any other contractor employed upon the work, or by any damage which may happen by the action of the elements, or by the abandonment of the work by employés through no fault of his, in which event an extension of time and 121 New York State Reporter equivalent to such delay shall be granted upon application to the said first party in writing within twenty-four hours of such delay”; that "in case of any failure or unreasonable delay of the said second party (Mertz & Gibb] whether by act or default in the performance of any of the above stipulations or compliance with the true intent of these presents, not authorized in writing by the said party of the first part, it shall be lawful for the said party of the first part, after three days' notice in writing to said party of the second part, to provide other workmen and materials to complete the said work in the place of the said party of the second part and to deduct the cost and charges thereby occasioned from the sums otherwise becoming due to the said party of the second part under this agreeinent without prejudice to any other remedy which the said party of the first part may have for breach thereof.” And Norcross agreed to pay to Mertz & Gibb, when the terms of the contract are complied with, and upon sufficient evidence that all claims upon the building for work or materials up to the time of payment are discharged, the sum of $35,370. This amount is to be paid in monthly installments, in proportions as the work progressed; 15 per cent. being reserved to be paid within 30 days from completion of the work. This contract was dated the 16th day of April, 1900. It was not disputed but that the plaintiff furnished the materials specified in his complaint, and had received the amount on account thereof specified in the complaint, which left a balance due him from Mertz & Gibb of $3,005.38.

Upon the trial the court found the making of this contract; that Mertz & Gibb entered into the performance of the work, and while so engaged, on the roth of April, 1901, without any fault or negligence of Mertz & Gibb, the workmen in their employ, 25 or upwards in number, instigated and controlled by a walking delegate, struck and refused to work upon the job until Mertz & Gibb became reconciled to the delegate and the union; that on the 11th of April, 1901, Mertz & Gibb requested an extension of time equal to the length of the strike for the completion of their work under the contract, but that Norcross refused to grant the extension, and suggested that they wait a few days, and see how the strike came out; that on the same day, in the morning, and without any notice to or permission from the said Mertz & Gibb, said · Norcross wrongfully took the job out of their hands and proceeded to do the work himself, claiming that they were doing it for and on account of said Mertz & Gibb, and intending to charge the expense upon them; that at the time of taking the work out of the hands of said Mertz & Gibb there had been no unreasonable delay on the part of Mertz & Gibb, or failure on their part in the performance of any of the stipulations in the said contract, or compliance with the true intent of the same, and that said Norcross neither served upon the said Mertz & Gibb a notice in writing to the effect that he intended to provide other workmen and materials to complete the said work in the place of said Mertz & Gibb, or any notice as prescribed in and by said contract, nor would he have been warranted in giving such a notice of terminating the contract with said Mertz & Gibb; that, when said Norcross wrongfully took the work out of the hands of Mertz & Gibb, they had performed extra work on written orders from said Norcross of the agreed value

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