Hodgins v. Zabel
| Citation | 7 Misc.2d 484,166 N.Y.S.2d 135 |
| Parties | James I. HODGINS, Plaintiff, v. Irene ZABEL, City Saving and Loan Association and Queens County Federal Savings and Loan Association of Jamaica, Defendants. |
| Decision Date | 17 June 1957 |
| Court | United States State Supreme Court (New York) |
Joseph J. Einhorn, New York City, for plaintiff.
Shepps & Klei, Hicksville, L. I., for defendant. Thomas J. Klei, Hicksville, of counsel.
Trial before the Court without a jury. Findings and conclusions were waived. Neither of the defendant banks appeared at the trial. The plaintiff's case was contested upon the trial, only by defendant, Zabel.
Plaintiff is the father of the defendant Zabel and two sons. Plaintiff's wife, the mother of these three children, died in October, 1955. Some time after the death of his wife, plaintiff remarried. His children did not approve of his remarriage. Shortly after his remarriage, plaintiff indicated that he was not getting along with his second wife.
In December, 1956, plaintiff had a conversation with his daughter, Irene Zabel, with reference to his bank accounts. He testified that he told her he wanted to transfer his funds into her name in trust for himself and that he was to receive the funds back from her on demand, to which she agreed.
His daughter, Irene Zabel, testified that the plaintiff told her he was transferring his money to her name as a gift to her and her two brothers, to be divided when the accounts reached the sum of s15,000.
On January 4, and 11, 1957, plaintiff went to the City Savings & Loan Association, alone, and deposited (by transfer of other bank accounts) the sum of s10,000, in the name of Irene Zabel, in trust for James I. Hodgins.
Similar transfers resulted in a deposit by plaintiff in the Queens County Federal Savings and Loan Association of Jamaica of the sum of s4,520.45, in the name of Irene Zabel, in trust for James I. Hodgins. (These two accounts amount to s14,520.45, something short of s15,000.)
The form of the deposits is not conclusive, both parties named in the account being still alive. And as between the persons named in the deposits, any presumption arising from the form of the deposit or account may be overcome by proof, as to the true nature of the transaction. In re Porianda's Estate, 256 N.Y. 423, 425, 176 N.E. 826; Matter of Bolin, 136 N.Y. 177, 180, 32 N.E. 626; Moskowitz v. Marrow, 251 N.Y. 380, 397, 167 N.E. 506, 511, 66 A.L.R. 870; Morris v. Sheehan, 234 N.Y. 366, 138 N.E. 23.
Did these transactions constitute a gift, or were they deposited under the conditions testified to by the plaintiff?
The controller of the City Savings and Loan Association testified that when plaintiff consulted him at the bank about putting his money in his daughter's name, in trust for himself, plaintiff was informed that it would be necessary, in that form of account, for his daughter to sign; and the controller further testified that plaintiff then said he wanted to do it that way because he felt he might do something foolish with his money.
One of plaintiff's sons, called as a witness by defendant Zabel, testified that his father told him he was not getting along with his second wife and that he had put the money in the name of defendant Zabel 'to protect it.'
The following additional circumstances are deemed significant in connection with this issue.
About one month after the deposits, defendant Zabel drew from one of the trust accounts the sum of $2,450 and turned this over to the plaintiff, to enable him to buy a car. Defendant Zabel testified that this was part of the agreement reached in connection with the conversation about a gift.
Furthermore, the answer of defendant Zabel in the instant case, was verified by the defendant Zabel on March 25, 1957, and her bill of particulars was verified on April 25, 1957, only several months before the trial. The notary in each case was one of her attorneys. Defendant Zabel testified as to the alleged gift.
Neither the answer nor the bill of particulars, verified by her, as above indicated, contains any allegation that these deposits were a gift to the three children, to be divided when the funds reached s15,000. The answer alleges 'That the sums of money given by the plaintiff to the defendant represents the shares of the defendant Irene Zabel and her two brothers in the estate of the said Irene Hodgins.' Although the answer, verified March 28, 1957, alleged that Irene Hodgins, the deceased mother, left personal property and money 'in excess of s10,000,' the bill of particulars (verified April 25, 1957) reduced the sum to $5,995.
The conclusion follows that the plaintiff's version of the conditions under which the deposits were made must be accepted.
Plaintiff demanded of his daughter, Irene Zabel, that the funds deposited, as aforesaid, be returned to him. This demand has not been complied with. Plaintiff is accordingly entitled to the return of the funds in question.
Even if we accepted the testimony of defendant Zabel, to wit, that plaintiff made a gift to the three children, to be divided or paid when the funds reached $15,000, that defense is insufficient. As a gift to take effect in the future, it was a...
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