Martin, J.
On October 3, 1923, the plaintiff’s grandmother, Fannie Manheimer, opened a savings account, which is the subject of this action, in the Yorkville Bank of New York city by depositing $4,000 in the statutory form in the joint names of herself and plaintiff. Thereafter, during the month of April, 1924, she caused four other savings bank accounts which she had in her individual name in the Excelsior Savings Bank, the Bank for Savings, the New Nether-land Savings Bank and the Greenwich Savings Bank to be changed to the joint names of herself and plaintiff, and delivered to plaintiff all of the bank books covering these accounts.
During the month of December, 1924, Fannie Manheimer caused each of the banks to be notified in writing that she had revoked the privilege granted to her granddaughter to withdraw money from the account and instructed each to honor no requisition other than her own. In January, 1925, Fannie Manheimer personally visited the New Netherland Bank, Excelsior Savings Bank and Yorkville Bank, withdrawing the deposits therefrom, and immediately redeposited the same in the respective banks to the credit of herself individually. She intended similarly to withdraw and redeposit the money in the Bank of Savings and Greenwich Savings Bank, but became ill and was unable to do so.
In the month of April, 1925, Fannie Manheimer again delivered the books covering all these accounts to her granddaughter, expressing regret for what she had done and instructed her to take such steps as were necessary to re-establish the accounts she had changed to her individual name back to the joint names in the statutory form. Thereupon the plaintiff called upon the New Netherland Bank, Excelsior Bank and Yorkville Bank and requested them, on her grandmother’s behalf, to send their representatives to her at her home where she lay ill, to the end that she might reinstate these accounts in the statutory form in the joint names of plaintiff and her grandmother.
The New Netherland Bank and Excelsior Savings Bank complied with this request and the accounts therein were so reinstated. The Yorkville Bank, however, declined to accede to the request, and although plaintiff sought to prevail upon her cousin, who, with his father, had influence with the Yorkville Bank, but whose interests were necessarily adverse to hers, to have that bank comply with her grandmother’s request, he refused to do so. The result was that when the grandmother died in the month of May, 1925, the Yorkville Bank account still remained in the individual name of Mrs. Manheimer. No moneys whatsoever had been withdrawn either by Mrs. Manheimer or by her granddaughter from any of these accounts at any time.
[3]*3Four of those accounts were involved in the case of Mosicowitz v. Marrow (251 N. Y. 380), recently decided by the Court of Appeals, where the executors not only attacked the establishment and reinstatement in the joint names and statutory form of the four accounts there directly involved, upon the ground that Mrs. Manheimer so created them for her convenience and without intent to give plaintiff any beneficial interest therein, because she was blind, but the executors attacked the re-establishment of the two accounts in the statutory form in April, 1925, as having been procured by fraud and the undue influence of plaintiff herein. The Special Term, however, found that there was no fraud or undue influence either in the original creation or re-establishment of any of those accounts.
The respondent points out that notwithstanding that decision, the defendants interposed as a defense herein that at the time Fannie Manheimer established the Yorkville Bank account in the statutory form in the joint names of herself and granddaughter in October, 1923, she intended only to further her own convenience because of her blindness and not to vest any beneficial interest therein, in the plaintiff.
After the defendant executors qualified, their attorneys bn July 8, 1925, wrote plaintiff demanding “ passbooks on ten banks of accounts in the name of Fannie Manheimer, now deceased,” and threatened legal proceedings upon failure to comply with the demands. In reply thereto, plaintiff’s attorney wrote the executors’ attorneys that plaintiff “ has not ten (10) pass books in the name of Fannie Manheimer, and the bank books in her possession, which have been forwarded to me to be delivered to the Executors, are the following,” naming them, and among them was the bank book of the Yorkville Bank account in the individual name of Fannie Manheimer.
Thereafter, the pass book with other books and papers, to which the executors were entitled, were delivered to the executors’ attorneys and by them receipted for. Thereupon defendant executors took the fund into their possession and later refused to pay it over to plaintiff.
The plaintiff asserts ownership by virtue of section 249 of the Banking Law, which is in part as follows:
“ 3. 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 and any additions thereto made by either of such persons after the making thereof, shall become the property of such persons as joint tenants, and the same together with all dividends thereon shall be held for the [4]*4exclusive use of such persons and may be paid to either during the lifetime of both or to the survivor after the death of one of them, * * *.”
In arriving at a solution of the question here involved, we are greatly aided by the admissions of the defendants and by a stipulation entered into between the parties. It was stipulated that the denials in the answer to paragraphs 3, 4 and 5 of the complaint should be withdrawn, leaving the facts alleged therein admitted. Paragraphs 3, 4 and 5 of the complaint are as follows:
“ 3. That on October 3rd, 1923, said Fannie Manheimer opened account number 91277 with the Yorkville Bank of New York City in the sum of Four thousand ($4,000) Dollars in the name of Pearl Harris or Fannie Manheimer, payable to either or survivor.
“ 4. That on January 19th, 1925, said Fannie Manheimer closed said account by withdrawing therefrom the funds thereof which, with accrued interest, then amounted to $4,203.20.
“ 5. That simultaneously therewith and on January 19th, 1925, said Fannie Manheimer opened account number 109887 with said Yorkville Bank of New York City by depositing therein the said $4,203.20 in her own name.”
It was also stipulated as follows:
“ 6. That neither side shall call any witnesses, it being conceded by both sides that each and every witness, if called, would testify upon direct and cross-examination as such witnesses testified in Moskowitz et al. v. Marrow.”
With these admissions and the stipulation we are, in effect, confronted with practically the same record as that produced in Moskowitz v. Marrow. It is apparent, therefore, that this account when made was intended to be a joint account and that thereafter Fannie Manheimer withdrew the account and put it in her own name. The defendants rely on that fact, contending that because the account was in the name of Fannie Manheimer at the time of her death, the estate is entitled thereto. It must be borne in mind however, that no money whatever was withdrawn by either party and that it was the same money which had been placed in the joint account which was afterwards deposited in the name of Fannie Manheimer.
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Martin, J.
On October 3, 1923, the plaintiff’s grandmother, Fannie Manheimer, opened a savings account, which is the subject of this action, in the Yorkville Bank of New York city by depositing $4,000 in the statutory form in the joint names of herself and plaintiff. Thereafter, during the month of April, 1924, she caused four other savings bank accounts which she had in her individual name in the Excelsior Savings Bank, the Bank for Savings, the New Nether-land Savings Bank and the Greenwich Savings Bank to be changed to the joint names of herself and plaintiff, and delivered to plaintiff all of the bank books covering these accounts.
During the month of December, 1924, Fannie Manheimer caused each of the banks to be notified in writing that she had revoked the privilege granted to her granddaughter to withdraw money from the account and instructed each to honor no requisition other than her own. In January, 1925, Fannie Manheimer personally visited the New Netherland Bank, Excelsior Savings Bank and Yorkville Bank, withdrawing the deposits therefrom, and immediately redeposited the same in the respective banks to the credit of herself individually. She intended similarly to withdraw and redeposit the money in the Bank of Savings and Greenwich Savings Bank, but became ill and was unable to do so.
In the month of April, 1925, Fannie Manheimer again delivered the books covering all these accounts to her granddaughter, expressing regret for what she had done and instructed her to take such steps as were necessary to re-establish the accounts she had changed to her individual name back to the joint names in the statutory form. Thereupon the plaintiff called upon the New Netherland Bank, Excelsior Bank and Yorkville Bank and requested them, on her grandmother’s behalf, to send their representatives to her at her home where she lay ill, to the end that she might reinstate these accounts in the statutory form in the joint names of plaintiff and her grandmother.
The New Netherland Bank and Excelsior Savings Bank complied with this request and the accounts therein were so reinstated. The Yorkville Bank, however, declined to accede to the request, and although plaintiff sought to prevail upon her cousin, who, with his father, had influence with the Yorkville Bank, but whose interests were necessarily adverse to hers, to have that bank comply with her grandmother’s request, he refused to do so. The result was that when the grandmother died in the month of May, 1925, the Yorkville Bank account still remained in the individual name of Mrs. Manheimer. No moneys whatsoever had been withdrawn either by Mrs. Manheimer or by her granddaughter from any of these accounts at any time.
[3]*3Four of those accounts were involved in the case of Mosicowitz v. Marrow (251 N. Y. 380), recently decided by the Court of Appeals, where the executors not only attacked the establishment and reinstatement in the joint names and statutory form of the four accounts there directly involved, upon the ground that Mrs. Manheimer so created them for her convenience and without intent to give plaintiff any beneficial interest therein, because she was blind, but the executors attacked the re-establishment of the two accounts in the statutory form in April, 1925, as having been procured by fraud and the undue influence of plaintiff herein. The Special Term, however, found that there was no fraud or undue influence either in the original creation or re-establishment of any of those accounts.
The respondent points out that notwithstanding that decision, the defendants interposed as a defense herein that at the time Fannie Manheimer established the Yorkville Bank account in the statutory form in the joint names of herself and granddaughter in October, 1923, she intended only to further her own convenience because of her blindness and not to vest any beneficial interest therein, in the plaintiff.
After the defendant executors qualified, their attorneys bn July 8, 1925, wrote plaintiff demanding “ passbooks on ten banks of accounts in the name of Fannie Manheimer, now deceased,” and threatened legal proceedings upon failure to comply with the demands. In reply thereto, plaintiff’s attorney wrote the executors’ attorneys that plaintiff “ has not ten (10) pass books in the name of Fannie Manheimer, and the bank books in her possession, which have been forwarded to me to be delivered to the Executors, are the following,” naming them, and among them was the bank book of the Yorkville Bank account in the individual name of Fannie Manheimer.
Thereafter, the pass book with other books and papers, to which the executors were entitled, were delivered to the executors’ attorneys and by them receipted for. Thereupon defendant executors took the fund into their possession and later refused to pay it over to plaintiff.
The plaintiff asserts ownership by virtue of section 249 of the Banking Law, which is in part as follows:
“ 3. 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 and any additions thereto made by either of such persons after the making thereof, shall become the property of such persons as joint tenants, and the same together with all dividends thereon shall be held for the [4]*4exclusive use of such persons and may be paid to either during the lifetime of both or to the survivor after the death of one of them, * * *.”
In arriving at a solution of the question here involved, we are greatly aided by the admissions of the defendants and by a stipulation entered into between the parties. It was stipulated that the denials in the answer to paragraphs 3, 4 and 5 of the complaint should be withdrawn, leaving the facts alleged therein admitted. Paragraphs 3, 4 and 5 of the complaint are as follows:
“ 3. That on October 3rd, 1923, said Fannie Manheimer opened account number 91277 with the Yorkville Bank of New York City in the sum of Four thousand ($4,000) Dollars in the name of Pearl Harris or Fannie Manheimer, payable to either or survivor.
“ 4. That on January 19th, 1925, said Fannie Manheimer closed said account by withdrawing therefrom the funds thereof which, with accrued interest, then amounted to $4,203.20.
“ 5. That simultaneously therewith and on January 19th, 1925, said Fannie Manheimer opened account number 109887 with said Yorkville Bank of New York City by depositing therein the said $4,203.20 in her own name.”
It was also stipulated as follows:
“ 6. That neither side shall call any witnesses, it being conceded by both sides that each and every witness, if called, would testify upon direct and cross-examination as such witnesses testified in Moskowitz et al. v. Marrow.”
With these admissions and the stipulation we are, in effect, confronted with practically the same record as that produced in Moskowitz v. Marrow. It is apparent, therefore, that this account when made was intended to be a joint account and that thereafter Fannie Manheimer withdrew the account and put it in her own name. The defendants rely on that fact, contending that because the account was in the name of Fannie Manheimer at the time of her death, the estate is entitled thereto. It must be borne in mind however, that no money whatever was withdrawn by either party and that it was the same money which had been placed in the joint account which was afterwards deposited in the name of Fannie Manheimer. It is also clear that she afterwards intended to and attempted to reinstate this account as a joint account.
In Moskowitz v. Marrow (251 N. Y. 380) the Court of Appeals said: “ The case of Matter of Tilley (166 App. Div. 240; affd., 215 N. Y. 702) is a definite authority to the effect that a true joint tenancy, between Fannie Manheimer and Pearl Harris, arose at the moment when the deposits were made.”
[5]*5The fact that Fannie Manheimer took the deposit out of the joint account and put it in her own name in another account, can in no wise affect the title of the other joint owner, there being no consent by that joint owner to the change in the account. It may be true that while the parties were living it might have been shown that Fannie Manheimer had an agreement with Pearl Harris which would rebut the presumption to be drawn from the statute with reference to the account. The court in a concurring opinion said: “ The tenancy, if joint in its creation, was not destroyed by revocation [cf. Kelly v. Beers, 194 N. Y. 58]. If the form of the deposit was an expression of the true agreement, there could be no change of ownership thereafter by an ex parte declaration. As to what the true agreement was, the door to controversy was open during the joint lives of the depositors. It was closed upon the death of either.”
In O’Connor v. Dunnigan (158 App. Div. 334), which was similar to this case, the court said: “The moneys represented by this deposit were originally deposited by Joseph Guilfoyle and his wife Mary in this same institution in an account which read: Payable to ‘ Mary Guilfoyle or Joseph Guilfoyle. Pay to either or the survivor of either.’ Four days before the death of Mary Guilfoyle, in the absence of Joseph Guilfoyle, she went to the bank, drew the money and deposited it to an account in her own name. The next day she made a will purporting to dispose of the same. Under this will the defendant executrix claims title to the property.”
The court further said: “ As between the bank and Mary Guilfoyle she had the right with the possession of the book to withdraw the moneys from the account. Her change of the moneys, however, from this account to another in her individual name, in the absence of and as far as appears without the consent of Joseph Guilfoyle, could not divest Joseph Guilfoyle of his joint ownership in the property. It would be preposterous to claim that an appropriation of personal property by one joint owner to his personal use could divest the interest of the other joint owner, or could in any way be presumed to have been by the consent of his co-owner. In order to change the joint ownership which presumptively existed defendant was required to show that the ownership of Joseph Guilfoyle has been voluntarily surrendered.”
In view of the statement of the law made by the Court of Appeals, wMch seems to be conclusive upon this controversy, the evidence offered would not change the result. Similar evidence was admitted in Moskowitz v. Marrow (supra) and was considered by the court. Conceding the truth of that evidence, we are still of the opinion that plaintiff is entitled to the fund in question.
[6]*6We have reached the conclusion, therefore, that the judgment is correct and should be affirmed, with costs.
Dowling, P. J., and Sherman, J., concur; Merrell and O’Malley, JJ., dissent.