Hemmerich v. Union Dime Sav. Inst.

• Decision Date: 30 April 1912
• Citation: 205 N.Y. 366,98 N.E. 499
• Parties: HEMMERICH v. UNION DIME SAVINGS INST.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 366

98 N.E. 499

HEMMERICH

v.UNION DIME SAVINGS INST.

Court of Appeals of New York.

April 30, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Anna Hemmerich, by Kate Hemmerich, her guardian ad litem, against the Union Dime Savings Institution. From a judgment of the Appellate Division, First Department (144 App. Div. 413,129 N. Y. Supp. 267), unanimously affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.Harry A. Gordon, of New York City, for appellant.

C. N. Bovee, of New York City, for respondent.

CHASE, J.

[1] This is an action at law by Anna Hemmerich, an infant, to recover a deposit of $1,000 and interest held by the defendant and made in its bank by William Hemmerich. The deposit was made in the name of ‘William Hemmerich in trust for Anna Hemmerich,’ and the usual passbook was taken therefor by him in that name. It appears from the evidence produced in behalf of the plaintiff that William Hemmerich at and prior to the time of making such deposit was employed as a cook and lived with his wife and two children, Anna, the plaintiff, then aged 10 years, and Margaret, then aged 7 years, in a tenement house in the city of New York. In the early part of the year 1907, he received by inheritance from his mother, $10,000 from Germany. On the morning of March 7, 1907, he told his wife that he was going to the Union Dime Savings Institution and put $1,000 in trust for each of the children. He said: ‘He was the trustee, and he was to be the trustee.’ His wife testified that when he returned on the same day: ‘He handed the books to the children, and they gave them to me. He was present when they gave them to me. I was in the habit of keeping things for safety, in a bureau drawer, locked. That had been my custom for some time, and my husband knew of that place, and he would sometimes give me things of his own to put in that drawer; that was the place where I and my husband kept anything that was valuable.’ The plaintiff, referring to the time when her father returned on March 7, 1907, testified as follows: ‘My father said, here is a present of a thousand dollars each. I deposited the money in the bank for you, and here is your bank book. He at the time handed me this book. At the time that he handed me the book he handed my sister Margaret her book. I gave my book to mamma. I said, ‘Mamma, here, keep it for me.’' Within about a month thereafter, William abandoned his family, and they have not seen him since. At the time he deposited the $1,000 in trust for Anna, he deposited $1,000 in the same bank in the name of ‘William Hemmerich, in trust for Margaret Hemmerich,’ and also $2,000 in his individual name. Although his family have not seen him since he left them in April, 1907, the $2,000 deposited in the defendant bank in his own name was thereafter withdrawn from the bank by him from to time; the last draft therefrom, closing the account, being July 18, 1907.

[2] The plaintiff insists that the evidence establishes a revocation of the trust and a complete and unconditional gift to her of the deposit. Such a gift of an indebtedness represented by such an account should be established by clear, convincing, and satisfactory evidence.

The deposit was made in the form in which it appears, deliberately and in accordance with the depositor's express intention. His alleged statement to his children when he returned from the bank with the bank books was, ‘I deposited the money in the bank for you.’ The words used by him under the circumstances disclosed simply mean that he had made a deposit in trust for...