168 A.D. 816, Fribourg v. Emigrant Industrial Savings Bank

• Date: 09 July 1915
• Docket Number: .
• Citation: 168 A.D. 816
• Parties: LOUISA FRIBOURG, Appellant, v. EMIGRANTS INDUSTRIAL SAVINGS BANK, Defendant, Impleaded with ESTHER ROBITSCHER, as Executrix, etc., of FREDERICK ROBITSCHER, Deceased, Respondent.
• Court: New York Supreme Court Appellate Division. First Department

Page 816

168 A.D. 816

LOUISA FRIBOURG, Appellant,

v.

EMIGRANTS INDUSTRIAL SAVINGS BANK, Defendant, Impleaded with ESTHER ROBITSCHER, as Executrix, etc., of FREDERICK ROBITSCHER, Deceased, Respondent.

Supreme Court of New York, First Department.

July 9, 1915

Page 817

APPEAL by the plaintiff, Louisa Fribourg, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1914, overruling a demurrer to a separate defense contained in the amended answer of the respondent.

COUNSEL

Frederick L. Guggenheimer, for the appellant.

Ferdinand E. M. Bullowa, for the respondent.

SCOTT, J.:

This action was originally brought against the defendant savings bank to recover the amount of a deposit standing in the name of Frederick Robitscher, now deceased, and which as it is claimed was given, transferred, set over and delivered to plaintiff by said Frederick Robitscher during his lifetime. Upon motion Esther Robitscher, as executrix of the last will and testament of said Frederick Robitscher, deceased, was interpleaded, and to a defense set up in her answer the plaintiff demurs.

That defense in brief is that heretofore the defendant as such executrix duly filed her accounts in the Surrogate's Court and that such proceedings were thereupon had upon due notice to all persons interested in the estate, including the plaintiff herein who was a legatee under the will of said Frederick Robitscher, that a decree was duly made and entered judicially settling and allowing the account as filed, and directing the distribution of the moneys in the hands of the executrix, including the amount of the deposit to which plaintiff now makes claim. In her account and schedules the respondent listed the deposit in controversy as a part of the estate of Frederick Robitscher, deceased, for which she was accountable.

It is now claimed that the decree of the Surrogate's Court passing the account was a judicial determination, among other

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things, that the said deposit was a part of the estate, and that plaintiff, being a party to the proceeding, is bound thereby.

In my opinion this claim is unfounded. The plaintiff's claim is against the bank, and only incidentally against the estate, growing out of the fact that the estate also claims the fund. As I look at it the Surrogate's Court had no jurisdiction to determine the ownership of the...