Russo v. Russo

CourtNew York City Municipal Court
Writing for the CourtLOUIS PECK
Citation218 N.Y.S.2d 413
Decision Date31 July 1961
PartiesRenee R. RUSSO (formerly known as Noreen Russo), Plaintiff, v. Thomas RUSSO, Defendant.

Page 413

218 N.Y.S.2d 413
Renee R. RUSSO (formerly known as Noreen Russo), Plaintiff,
v.
Thomas RUSSO, Defendant.
Municipal Court of City of New York, Borough of Bronx,
Second District, Central Jury, Part II.
July 31, 1961.

Joseph B. Franklin, New York City, for plaintiff.

Michael A. Di Salvo, New York City, for defendant.

LOUIS PECK, Justice.

The parties herein having waived trial by jury, this case presents itself for decision upon a stipulated set of facts which, briefly, are as follows:

Plaintiff and defendant were married on March 14, 1957, at which time defendant husband maintained a bank account in the Dollar Savings Bank under account No. 287894. Shortly after the marriage the said account was made a joint account in accordance with the form prescribed by Banking Law, § 239, subd. 3, as follows: 'Thomas Russo or Mrs. Noreen Russo, payable to either or survivor.' On or about January 27, 1960, the parties became separated and on or about March 3, 1961 a judgment of separation was entered in the office of the Clerk of the County of the Bronx in favor of the plaintiff. When the parties separated, there was a balance in the amount of $6,298.71. On March 4, 1960, the defendant withdrew from the said account the sum of $5,000 and on June 15, 1960,

Page 414

he withdrew the sum of $1,310.06 which represented the balance then remaining.

Plaintiff, conceding that she did not contribute any funds toward the said account, now seeks $3,000 from defendant on the theory that she has title to a moiety of the funds formerly in the joint account as a joint tenant and that her title could not be divested by the unilateral action of defendant. Plaintiff sues for $3,000 in order to bring herself within the jurisdiction of the Court. Plaintiff relies heavily on Banking Law, § 239, subd. 3, and cases decided thereunder. Defendant, in turn, claims that he only conferred a right of survivorship upon plaintiff when he transferred his funds into a joint account. Defendant would limit the application of Banking Law, § 239, subd. 3, to those cases where one of the depositors named in the joint account is deceased and the surviving depositor seeks full title to the account.

In 1929, the Court of Appeals was required to construe this statute (then Banking Law, § 249) in Moskowitz v. Marrow, 251 N.Y. 380, 167 N.E. 506, 66 A.L.R. 870, upon the following facts: On April 28, 1924, Fannie Manheimer, the holder of individual accounts in four banks, established joint accounts therein, credited to Fannie Manheimer and Pearl Harris, her granddaughter, payable to either or the survivor of them; on December 5, 1924, Fannie Manheimer 'delivered a writing to each of the four banks, notifying each that the 'privilege' granted by her to Pearl Harris 'to withdraw any money or moneys frm my account or joint account in your bank' was revoked and instructing each to honor no signature other than her own for any withdrawal; 'in January, 1925, Fannie Manheimer withdrew the deposits from two of the four banks and redeposited them therein to the credit of herself individually; in April, 1925, Fannie Manheimer directed tha the accounts in the two banks be re-established in the joint names of herself and Pearl Harris payable to either or the survivor; May 4, 1925, Fannie Manheimer died; shortly thereafter Pearl Harris withdrew the funds from three of the banks. The action was brought by the executors of the last will and testament of Fannie Manheimer to recover from Pearl Harris the moneys withdrawn by her.

The plaintiffs in Moskowitz laid emphasis upon the last sentence of Banking Law, § 249 (as the defendant herein does upon the last sentence, Banking Law, § 239, subd. 3, the successor to Sec. 249.) They urged, in the words of the Court, that:

'A deposit in the statutory form will constitute evidence of an intent to give, but this evidence will be available only in an action to which either a savings bank or 'the surviving depositor' may be a party. The intent which it will evidence in any action is an intention of the depositors 'to vest title to such deposit and the additions thereto in such survivor.' The form of the deposit,

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in an action between the...

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2 practice notes
  • Wach's Estate, In re
    • United States
    • New York Surrogate Court
    • May 24, 1966
    ...of Levinsky, 23 A.D.2d 25, 258 N.Y.S.2d 613, motion for leave to appeal denied 16 N.Y.2d 484, 211 N.E.2d 654; Russo v. Russo, Mun.Ct., 218 N.Y.S.2d 413; 1959 Report of Law Revision Commission, p. 361 et seq. (McKinney's 1959 Session Laws p. 1617 et seq.). The exception has been abolished by......
  • Cordes v. Cordes
    • United States
    • United States State Supreme Court (New York)
    • January 9, 1963
    ...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 ......
2 cases
  • Wach's Estate, In re
    • United States
    • New York Surrogate Court
    • May 24, 1966
    ...of Levinsky, 23 A.D.2d 25, 258 N.Y.S.2d 613, motion for leave to appeal denied 16 N.Y.2d 484, 211 N.E.2d 654; Russo v. Russo, Mun.Ct., 218 N.Y.S.2d 413; 1959 Report of Law Revision Commission, p. 361 et seq. (McKinney's 1959 Session Laws p. 1617 et seq.). The exception has been abolished by......
  • Cordes v. Cordes
    • United States
    • United States State Supreme Court (New York)
    • January 9, 1963
    ...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 ......

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