Sullivan v. Sullivan

• Decision Date: 06 February 1900
• Parties: SULLIVAN v. SULLIVAN.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 554

56 N.E. 116

SULLIVAN

v.SULLIVAN.

Court of Appeals of New York.

Feb. 6, 1900.

Appeal from supreme court, appellate division, Third department.

Action by Patrick R. Sullivan, as administrator, etc., against Catherine Sullivan. From a judgment of the appellate division (56 N. Y. Supp. 693) affirming a judgment for the plaintiff, defendant appeals. Affirmed.

Burton S. Chamberlin, for appellant.

Frederick Collin, for respondent.

WERNER, J.

On the 10th day of October, 1892, the plaintiff's intestate, Catherine Sullivan, deposited with the Chemung Canal Bank the sum of $2,000, and received therefor a certificate of deposit in the following form: ‘$2,000. Elmira, N. Y., Cct. 10th, 1892. Catherine Sullivan has deposited in this bank two thousand dollars, payable one day after date to the order of herself, or, in the case of her death, to her niece, Catherine Sullivan, of Utica, upon the return of this certificate, with interest at 3 per cent. per annum if held six months. Not subject to check. J. H. Arnot, V. P. No. 26,638.’ She retained possession of said certificate until her death, which occurred on the 8th day of February, 1893, and after her death it was found among her papers. This action was originally brought against the individuals who composed the firm known as the Chemung Canal Bank, and was upon their application continued against the present defendant, who claims to be entitled to the moneys represented by said certificate. Upon the trial, oral evidence was adduced to show, and the court found, that it was the intention of the plaintiff's intestate to have the said certificate of deposit so drawn that in case of her death, without having withdrawn the deposit, it could be drawn by the defendant. The trial court also found that ‘no attempt was made by the plaintiff's intestate to create a trust to exist during the life of the said intestate. Until her death, the bank was her debtor.’ Defendant's father, whose real name was Brown, was a nephew of the plaintiff's intestate, and lived with her for 36 years, taking the name of Sullivan, and being regarded and treated as an adopted son, although no legal adoption was ever consummated. The defendant was born in the house of plaintiff's intestate, in Elmira, and lived there for 4 or 5 years after her birth, at the end of which period she removed with her parents to the city of Utica. Plaintiff's intestate, who was childless, exhibited and expressed on all occasions great fondness for the defendant, and at the time of said deposit stated to the teller of said bank that ‘she wanted it fixed to hereself, or, in case of her death, to her niece, Catherine Sullivan, of Utica.’

In asserting her claim to this fund, the defendant invokes several distinct principles of law, the first of which is that the deposit of this money and the issuance of this certificate constituted a valid contract between plaintiff's intestate and the bank for the benefit of the defendant. Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724,44 L. R. A. 170; Dutton v. Pool, 1 Vent. 318, and Todd v. Weber, 95 N. Y. 181, are cited in support of this contention. As I read these cases, they have no application to the case at bar; for in each of them there was a valid contract, founded upon a sufficient consideration, for the benefit of a third person, which the latter could enforce. Here there was no contract to which the defendant was a privy, nor can it be said that the relations of the plaintiff's intestate and the defendant were such as to furnish any consideration for such a contract, if one had existed.

It is further urged on behalf of the defendant that the transactions between the plaintiff's intestate and the bank created a trust under which the bank became a trustee for the defendant, subject to a power of revocation, which resided in the plaintiff's intestate during her...