Martens v. Bethel

• Decision Date: 19 August 1966
• Citation: 273 N.Y.S.2d 137,51 Misc.2d 202
• Parties: Herman J. MARTENS, Plaintiff, v. Grace Y. BETHEL et al., Defendants.
• Court: New York Supreme Court

Page 137

273 N.Y.S.2d 137

51 Misc.2d 202

Herman J. MARTENS, Plaintiff, v. Grace Y. BETHEL et al., Defendants.

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

Aug. 19, 1966.

Cahn & Cahn, Huntington, for plaintiff.

J. Francis Lynch, Garden City, for defendant, Suburbia Federal Savings & Loan Ass'n.

I. Leonard Feigenbaum, Melville, for Grace Y. Bethel, et al., individual defendants.

MEMORANDUM

JACK STANISLAW, Justice.

This action is one to impress a trust upon eight accounts in the names of the individual defendants held in three separate New York banks. Plaintiff Martens now moves for summary judgment.

Martens' claim that the funds in question were formerly contained in nine different accounts in three Florida banks is not contradicted. These had been held jointly by plaintiff and his wife, now deceased. The defendants, the children of the deceased wife, also do not dispute the assertion that their mother withdrew the monies in the Florida joint accounts and that these withdrawals actually constitute the subject New York accounts. The latter are subject to a temporary injunction, previously issued, preventing any transfer pending this determination.

It is first necessary to determine the rights and interests of plaintiff and his wife in the joint Florida accounts, a matter of Florida law. 5 N.Y.Juris., Banks & Trust Cos., § 243; In re Kugel's Estate, 192 Misc. 61, 78 N.Y.S.2d 851; In re Kienle's Estate, Sur., 139 N.Y.S.2d 150; In re Buckley's Estate, 32 Misc.2d 928, 223 N.Y.S.2d 591, revd. on other grounds 17 A.D.2d 937, 234 N.Y.S.2d 269, affd. 13 N.Y.2d 1012, 245 N.Y.S.2d 594, 195 N.E.2d 305. But the defendants argue that any issue involving the construction, interpretation or application of foreign law raises a question of fact precluding summary judgment based upon that law. Formerly, it was a matter of discretion whether or not judicial notice be taken of applicable foreign law. However, this discretion has been eliminated (CPLR, 4511), and notice now Must be taken judicially of the relevant common and statutory law of a sister state though neither pleaded nor proved (Monko v. Cicoria, 46 Misc.2d 565, 260 N.Y.S.2d 70; State Street Properties, Inc. v. Mizrahi, 44 Misc.2d 964, 254 N.Y.S.2d 776; Gevinson v. Kirkeby-Natus Corp., 26 A.D.2d 71, 270 N.Y.S.2d 989). Although the courts previously withheld judicial notice of foreign law in many cases, with the result that summary judgment was only rarely available for that reason, the effect of the procedural change evidenced by CPLR, 4511, is to demand that notice be taken and thus judgment awarded where otherwise warranted.

We proceed to our examination of Florida law. In that state a joint account is not immediately the true and full equivalent of a joint tenancy or tenancy by the entireties (Spark v. Canny, Fla., 88 So.2d 307; Chase Federal Savings & Loan Assn. v. Sullivan, Fla., 127 So.2d 112). The nature of the estate is instead governed by the intent of the parties concerned at the time the account was set up (Hagerty v. Hagerty, Fla., 52 So.2d 432).

Martens claims that it was his intent to establish the Florida accounts for the convenience of his wife and himself. The defendants insist that this alleged intent raises a question of fact which defeats the motion. They argue too, that at any rate the contribution of $10,000 by the wife to the $90,000 contained in the nine original Florida accounts presumptively results in a tenancy by the entirety as to the whole to the exclusion of any issues as to intent.

The Florida courts have addressed themselves to the relationships involved through the creation of joint tenancies by adopting and then reiterating the following language: 'Either spouse presumptively has the power to act for both, so long as the marriage subsists, in matters of the entireties, without any specific authorization, provided the fruits or proceeds of such action inures to the benefit of both and the estate is not terminated. But neither may by such action destroy the true purpose of the estate by attempting to convert it or a part of it, in bad faith, into one in severalty.' Madden v. Gosztonyi Savings & Trust Co., 331 Pa. 476, 489, 200 A. 624, 630--631, 171 A.L.R. 904 (followed in Anderson v. Carter, Fla.App., 100 So.2d 831). Therefore, in New York (In re Kienle's Estate, Sur., 139 N.Y.S.2d 150) we permit a surviving joint tenant to trace funds withdrawn from a joint...