Bonnette v. Molloy

• Decision Date: 20 June 1913
• Citation: 209 N.Y. 167,102 N.E. 559
• Parties: BONNETTE v. MOLLOY.
• Court: New York Court of Appeals Court of Appeals

209 N.Y. 167

102 N.E. 559

BONNETTE

v.MOLLOY.

Court of Appeals of New York.

June 20, 1913.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ellen S. Bonnette, as executrix of the last will and testament of Margaret Scone, deceased, against the New York Savings Bank, in which Joseph A. Molloy was allowed to interplead as substituted defendant. From a judgment of the Appellate Division (153 App. Div. 73,138 N. Y. Supp. 67), reversing a judgment for plaintiff, she appeals. Reversed and remanded.D. Cady Herrick, of New York City, for appellant.

James F. Fogerty, of New York City, for respondent.

WILLARD BARTLETT, J.

On July 8, 1903, Margaret Scone, the plaintiff's testatrix, deposited $2,200 in the New York Savings Bank, which thereupon issued a bank book describing the account as follows: ‘New York Savings Bank in Acct. Joseph A. Molloy or Margaret Scone, payable to either and to the survivor.’ At the time of the death of Margaret Scone on June 13, 1907, there remained in this account an undrawn balance amounting to $1,800. On February 3, 1909, the plaintiff, as executrix of Margaret Scone, brought an action against the New York Savings Bank to recover this balance, whereupon Joseph A. Molloy obtained an order of interpleader substituting him as defendant, thus transforming the action into a suit in equity to determine the ownership of the savings bank fund, to which the substituted defendant claimed to be entitled as survivor of the two persons in whose names the account was opened.

In his answer the defendant alleged that he himself opened the account, but the trial judge decided that the account was opened by Margaret Scone, and that she did not intend to give the money to the defendant. The Appellate Division has differed from the court at Special Term upon both these points. It reversed the judgment as to part of the sixth finding of fact, which was to the effect that the said Margaret Scone opened the account; and it also reversed the whole of the eleventh finding of fact, which was to the effect that Margaret Scone did not intend to give the money in the account to the defendant. The order of reversal further directed judgment in favor of the defendant for the relief demanded in his answer to the effect that he was entitled to the whole of the savings bank fund, with accrued interest thereon.

The disposition which has thus been made of the case presents for consideration the effect of the amendment to section 1317 of the Code of Civil Procedure by chapter 380 of the Laws of 1912, which became operative on September 1, 1912; so far as such amendment relates to the power of the Appellate Division upon the review of judgments rendered in equity suits or other cases tried before the court without a jury. The amended section empowers the Appellate Division upon the review of a judgment to ‘render judgment of affirmance, judgment of reversal, and final judgment, upon the right of any or all of the parties, or judgment of modification thereon according to law, except where it may be necessary or proper to grant a new trial or hearing.’ In the present case the Appellate Division considered that section 1317, as thus amended, authorized it to grant the judgment that should have been granted by the trial court; and that the circumstances were appropriate for the exercise of that power inasmuch as there was no conflict in the evidence, notwithstanding that this conclusion involved not merely a reversal of some of the findings, but a different view of the facts in other respects from that entertained by the trial court. The learned judge who wrote for the Appellate Division says: ‘I assume it will be presumed on any appeal to the Court of Appeals from such a final judgment that the Appellate Division has made every determination of fact warranted by the evidence in support of the judgment which it has granted, the same as we now presume a finding of fact by the trial court in support of a judgment where such findings would be warranted by the evidence.’ He, therefore, concludes that the Appellate Division is not required to formulate any finding of fact in such an order of reversal; although unless additional findings of fact are presumed to have been made the judgment directed by the Appellate Division would be without sufficient support.

The effect of the amendment to section 1317 of the Code of Civil Procedure as thus construed is to empower the Appellate Division (1) to reverse any finding made by the trial court or any part thereof; (2) to modify any such finding or any part thereof; and (3) to direct final judgment in accordance with the view which the Appellate Division may take of the evidence in the case without actually making any new findings to support such judgment.

In the case at bar the trial judge, as...