App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. Isaac Lawson, for the plaintiffs. James Fenimore Cooper, for the Albany Savings Bank. Albert Rathbone, for Montgomery H. Rochester. PUTNAM, J.: James C. Bell, deceased, made the following deposits in the Albany Savings Bank: April 3, 1891, $2,000; June 21, 1891, $500; February 1, 1892, $500. The entry in the pass book which he received from the bank, relating to said deposits, was as follows: "Albany Savings Bank in account with Mrs. Alida P. Bell, or James C. Bell, her husband, or the survivor of them." James C. Bell died on the 9th day of March, 1895, leaving a last will and testament, and the plaintiffs, named therein as executor and executrix, afterwards duly qualified as such. Alida P. Bell died intestate on the 2d day of November, 1895, and the defendant Montgomery H. Rochester was duly appointed administrator of the goods, chattels and credits of said deceased. During the lifetime of the said James C. Bell he retained the actual possession of said pass book, and it never came into that of said Alida until after his death, although she knew of its existence before. The question is presented, whether the plaintiffs, as executors of James C. Bell, deceased, are entitled to demand and receive from the Albany Savings Bank the balance unpaid on the deposits aforesaid, or is the defendant Rochester, as administrator, entitled to collect such fund. Had the deposit been made to the credit of Mrs. Alida P. Bell und James C. Bell simply, it is clear that the former, on surviving her husband, would have been entitled to the fund remaining in the bank. In that case there would have been created a joint ownership of the deposit, and, under well-settled doctrines, the survivor would have been entitled to the property. I think that the deposit made to the credit of "Mrs. Alida P. Bell, or James C. Bell, her husband, or the survivor of them," should be deemed to have the same. meaning and effect as would a deposit to the credit of Alida P. Bell and James C. Bell. Had the entry in the pass book been thus made, either, on presenting the pass book to the bank, could have drawn the whole sum deposited, and the survivor, after the death of THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. one, would have been entitled to demand the whole amount remaining on deposit. The deposit as in fact made to the credit of Mrs. Alida P. Bell or James C. Bell, her husband, also authorized either, during their joint lives, on the presentation of the pass book to the bank, to draw the whole fund; and the words added, "or the survivor of them," placed the parties in the same position, and with the same rights, as if the entry had been made to the credit of Alida P. Bell and James C. Bell. This construction of the entry in the pass book effectuates the evident intent of James C. Bell in making the deposit. The question then arises whether there was a valid gift of the deposit to Alida P. Bell from her husband; she never had possession of the pass book until after his death. Ordinarily, to constitute a valid gift of personal property, there must be an intent to give, and a delivery, either by transferring the custody of the property itself given to the donee, or by delivering some symbol which represents possession. In Beaver v. Beaver et al. (117 N. Y. 421; 137 id. 59); Matter of Bolin (136 id. 177); Young v. Young (80 id. 422); Wadd v. Hazelton (137 id. 215), cited by the learned counsel for the plaintiffs, the Court of Appeals held that no valid gift was established, for the reason that in each of those cases there was no delivery of the thing given or of any symbol representing possession. There are authorities, however, which have held gifts valid, although there was no actual delivery to the beneficiary, as where one deposits money in his own name in trust for another, and thus makes himself a trustee. Such are the cases of Martin v. Funk (75 N. Y. 134); Hyde v. Kitchen (69 Hun, 280); Macy v. Williams (55 id. 489.) In such cases the possession by the trustee is for the benefit of the cestui que trust, and is, in fact, the possession of the latter. So, it has been determined that, where a donor gives to a donee a joint interest in the property with himself, the possession of the thing given, or of a symbol thereof, is not required to constitute a valid gift. Where a husband lent money, and took a note therefor payable to the order of himself and wife, it was held that this imported a gift to the wife in case she survived him, and that a delivery of the note to her by the husband was not necessary. (Sanford v. Sanford, 45 N. Y. 723; 58 id. 69.) App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. In Fowler v. Butterly (78 N. Y. 68) a husband took out a policy of insurance, securing a benefit to himself and his wife. In delivering the opinion of the court, MILLER, J., said, assuming. that there was no actual delivery of the policy to the wife: "His possession (that of the husband) was the possession of the wife, and the general rule that where there is a gift there must be an actual delivery, therefore has no application. * * * It is, we think, well settled that where the husband takes a security or obtains a policy of insurance, in which the sum named therein is payable to himself and his wife, and she survives him, that the action survives to her, and the form of the security implies a design by the husband to benefit the wife." (See, also, Lowery v. Erskine, 113 N. Y. 52.) If our conclusion is correct, that the deposit made by James C. Bell in the Albany Savings Bank to the credit of himself or his wife, or the survivor of them, has the same meaning as if the entry had been made to the credit of Alida P. Bell and James C. Bell, the principles established in the authorities last above cited apply. The deposit, thus made by James C. Bell, made his wife a joint owner with himself of the sum deposited. It was not necessary to the validity of the gift, under the circumstances, that the wife should have possession of the pass book during the lifetime of her husband. As held in Fowler v. Butterly (supra), the possession of the husband was that of the wife. (See, also, Scott v. Simes, 10 Bosw. 314; Roman Catholic Orphan Asylum v. Strain, 2 Bradf. 34; Mack v. The Mechanics & Farmers' Savings Bank, 50 Hun, 477.) We conclude that Alida P. Bell, surviving her husband, was entitled to demand and receive from the Albany Savings Bank the balance of the funds deposited by him remaining in the bank at the time of his death. We have examined the cases in the Court of Appeals cited on behalf of the plaintiff, and are of the opinion that they do not conflict with the conclusion we have reached. Judgment should be rendered in favor of the defendant Rochester. All concurred. Judgment directed in favor of the defendant Rochester. APP. DIV.-VOL. VIII. 7 THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. WILLIAM D. ALLEY, Respondent, v. WILLIAM J. TURCK, Appellant. Consideration - a sub-contractor, refraining from filing a mechanic's lien, on the promise of a surety for, and the assignee of the claim of, the contractor to pay the latter's debt to the sub-contractor, may enforce the promise. Where a sub-contractor, at the request of the surety for the contractor, and upon a promise by the surety to pay the claim of the sub-contractor for work done upon a building, omits to file a mechanic's lien, such omission furnishes a sufficient consideration for the promise of the surety to pay the sub-contractor his debt. Where the surety is responsible for the performance of the work upon a building by the contractor, who has assigned to the surety all the balance due upon the contract, the omission of the sub-contractor to file a lien (and thus reduce the amount which the surety is entitled to receive from the owner of the property) constitutes a new consideration beneficial to the surety and assignee of the contract, and his promise to pay the sub-contractor is thereby taken out of the operation of the Statute of Frauds. The promise of the surety then becomes original, and he comes under an independent duty to pay the sub-contractor, notwithstanding the fact that the primary debt from the contractor to the sub-contractor still remains unpaid APPEAL by the defendant, William J. Turck, from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 11th day of January, 1895, upon the verdict of a jury, and also from an order entered in said clerk's office on the 14th day of January, 1895, denying the defendant's motion for a new trial made upon the minutes. Howard Chipp, Jr., for the appellant. Brinnier & Newcomb, for the respondent. PUTNAM, J.: In the month of March, 1893, one Samuel Brundage contracted to erect for one Robert Mains a house, and to do all the work and furnish all the materials therefor. The plaintiff entered into an agreement with said Brundage to do the mason work required by said contract. The defendant was a surety for Brundage, becoming responsible to Mains for the completion of the house according to the contract. Brundage was then indebted to the defendant, and the latter was about to furnish the former with lumber necessary to App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. perform said contract. Brundage thereupon, and shortly after the execution of his contract with Mains, assigned his (Brundage's) interest in said contract to the defendant, in form by an absolute assignment, but intended as a security to the latter. After the assignment Brundage proceeded to erect the house and perform the contract, and received from the owner the greater part of the payments due on the contract. The last payment, however, of $1,100 was collected by the defendant. * * After the plaintiff claimed to have completed his mason work under his agreement with Brundage, he testified that he had the fol lowing conversation with the agent of the defendant: "I went down to see Mr. Turck, and I said, Mr. Turck, what is there about my money on the Mains job? I have begun to get uneasy, and if I don't get any money I will put a lien on it. He said, there is nothing to be uneasy for, don't put a lien on it. We are Mains' bondsmen, and when Mains pays us we will pay you every dollar you have got in it. On the Monday after I went and saw Mr. Turck; he said Mr. Mains was finding fault with regard to the cellar bottom. He said as soon as he was satisfied he would pay me every dollar I had in it. He said him and I were the men that had to deal. I had nothing to do with Brundage, no more than a man out West. He said that Mains insisted upon having the bottoms ripped wholly out. Mr. Turck then told me to go on and put on the cement and he would pay every dollar. I did so." The plaintiff further said that, relying upon the promise of Mr. Turck, he did not file a notice of lien. The above-quoted testimony of the plaintiff is denied by that of the defendant's agent, but its truth must be deemed established by the verdict of the jury. * * * The plaintiff brought this action upon the said promise of the defendant to pay the balance of his claim against Brundage, and recovered in the court below. It was shown that, after the promise, the defendant received from Mains $1,100, the balance due on the contract, but that he refused to pay the plaintiff according to his agreement. The defendant insists that the promise of the defendant, on which the plaintiff seeks to recover, was without consideration, and, if otherwise, was a promise to answer for the debt of another, and not being in writing was void by the Statute of Frauds. |