Cordes v. Cordes

• Decision Date: 09 January 1963
• Citation: 237 N.Y.S.2d 542
• Parties: Ann CORDES, Plaintiff, v. Karl CORDES, Dime Savings Bank of Williamsburg, Williamsburg Savings Bank and the Kings County Savings Bank, Defendants.
• Court: New York Supreme Court

Page 542

237 N.Y.S.2d 542

Ann CORDES, Plaintiff, v. Karl CORDES, Dime Savings Bank of Williamsburg, Williamsburg Savings Bank and the Kings County Savings Bank, Defendants.

Supreme Court, Special Term, Queens County, Part I.

Jan. 9, 1963.

Martin G. Breitkopf, Jamaica, for plaintiff.

Thomas P. Cullen, Jamaica, for defendant Karl Cordes.

S. M. & D. E. Meeker, Brooklyn, for defendant, The Williamsburg Savings Bank.

Taylor & Roberts, New York City, for defendant, The Kings County Savings Bank.

ANTHONY M. LIVOTI, Justice.

In an action to impress a trust on certain bank accounts the plaintiff moves for a temporary injunction staying the defendant savings banks from paying out any of the funds on deposit in the said accounts.

The plaintiff is the wife of the defendant Karl Cordes. In June 1950 joint savings accounts were opened in their names in the defendant Dime Savings Bank of Williamsburg and the defendant Williamsburg Savings Bank. Each of these accounts was in the sum of $5,000. The defendant Karl Cordes has withdrawn sums from these accounts and there is now remaining in the Dime Savings Bank approximately $530 and in the Williamsburg Savings Bank approximately $1232. The plaintiff contends that the moneys withdrawn by the defendant have been deposited in his personal account in the Kings County Savings Bank.

The burden of establishing the right to the drastic relief of a temporary injunction is upon the moving party. (Park Terrace Caterers, Inc. v. McDonough, 9 A.D.2d 113, 191 N.Y.S.2d 1001.) The plaintiff herein has not met that burden. The original source of the funds in the joint accounts was the defendant Karl Cordes. These funds were deposited in the joint accounts prior to April 20, 1959, which was the effective date of section 56-a of the Domestic Relations Law. Accordingly, the common law rule prevails that unless a different intention is shown the transfer of personal property into the names of husband and wife operated to give the wife a right of survivorship only, and no personal interest in the property. (Belfanc v. Belfanc, 252 App.Div. 453, 300 N.Y.S. 319, affd. 278 N.Y. 563, 16 N.E.2d 103; Russo v. Russo, Mun.Ct., 218 N.Y.S.2d 413.) Moreover, since the defendant Karl Cordes claims in his affidavit that he must use the funds in these accounts to maintain the liquidity of his business, it appears that a temporary injunction will do greater damage to the defendant than its denial would to the plaintiff. (Gilbert v. Burnside, 6...