Scanlan v. Meehan

Appellate Division of the Supreme Court of New York

Scanlan v. Meehan

216 A.D. 591, 216 N.Y.S. 71, 1926 N.Y. App. Div. LEXIS 9279

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 5, 1926

StatusPublished

Cited by4 cases

This text of 216 A.D. 591 (Scanlan v. Meehan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scanlan v. Meehan, 216 A.D. 591, 216 N.Y.S. 71, 1926 N.Y. App. Div. LEXIS 9279 (N.Y. Ct. App. 1926).

Pincite

Opinion

Per Curiam.

The appeal is from an order dismissing the complaint for insufficiency upon a motion made at the trial, and from the judgment entered thereon. The complaint in substance alleges that Patrick B. Lane deposited $5,000 of his own money in the Syracuse Savings Bank in the joint name of himself and defendant, either or survivor to draw; that the deposit was made in that form, not as a gift but for convenience only; that defendant fraudulently and without Lane’s knowledge and consent drew the money out of the bank, appropriated it to his own use and refused to return it. The action was brought by Lane as plaintiff in his lifetime. After his death the present plaintiffs were duly substituted. [592]*592The decision seems to have rested on section 249 of the Banking Law. We are of the opinion that as between the parties themselves, the presumption, if any, arising from the making of the deposit in the form mentioned is not conclusive as to the ownership of the fund; and that the death of Lane after the commencement of the action in no wise changed the cause of action. There seems to be no direct authority on the question, but see dicta in Havens v. Havens (126 Misc. 155,170; affd., 215 App. Div. 756) and in Heiner v. Greenwich Savings Bank (118 Misc. 326, 328).'

The judgment and order should be reversed on the law and a new trial granted, with costs to the appellants to abide the event.

.All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment and order reversed on the law, and new trial granted, with costs to appellants to abide event.

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Per Curiam.

The appeal is from an order dismissing the complaint for insufficiency upon a motion made at the trial, and from the judgment entered thereon. The complaint in substance alleges that Patrick B. Lane deposited $5,000 of his own money in the Syracuse Savings Bank in the joint name of himself and defendant, either or survivor to draw; that the deposit was made in that form, not as a gift but for convenience only; that defendant fraudulently and without Lane’s knowledge and consent drew the money out of the bank, appropriated it to his own use and refused to return it. The action was brought by Lane as plaintiff in his lifetime. After his death the present plaintiffs were duly substituted. [592]*592The decision seems to have rested on section 249 of the Banking Law. We are of the opinion that as between the parties themselves, the presumption, if any, arising from the making of the deposit in the form mentioned is not conclusive as to the ownership of the fund; and that the death of Lane after the commencement of the action in no wise changed the cause of action. There seems to be no direct authority on the question, but see dicta in Havens v. Havens (126 Misc. 155,170; affd., 215 App. Div. 756) and in Heiner v. Greenwich Savings Bank (118 Misc. 326, 328).'

The judgment and order should be reversed on the law and a new trial granted, with costs to the appellants to abide the event.

.All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment and order reversed on the law, and new trial granted, with costs to appellants to abide event.

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Bluebook (online)

216 A.D. 591, 216 N.Y.S. 71, 1926 N.Y. App. Div. LEXIS 9279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scanlan-v-meehan-nyappdiv-1926.

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