I do not concur with Mr.- Justice Patterson. The complaint alleges that on the 25tli of May, 1895, and at various other times, the defendant Louis J. Allen received from the plaintiff a large sum of money wherewith to purchase the property known as 42 and 44 West Sixty-sixth street in the city of New York, and promised and agreed with the plaintiff to purchase the aforesaid property and to have title thereto conveyed to said plaintiff; that the defendant Allen did purchase such property with the moneys of the plaintiff and received by the defendant Allen for the purpose of purchasing said property as aforesaid, but that said Allen had the title to the property conveyed to himself and took a deed thereof in his own name, without the consent or knowledge of plaintiff, by whom the consideration for said property was paid as aforesaid; that in June, 1899, the defendant Allen conveyed the premises to the defendant Seaver, who took the same with notice and actual knowledge of the equities of the plaintiff herein, and judgment is demanded that the deed of the premises herein described from Allen to the defendant Seaver be declared null and void, and in fraud of the plaintiff’s rights, and that the defendant Seaver be enjoined and restrained from interfering with the possession of the plaintiff and of the plaintiff’s tenants to said premises described, and that the defendant Seaver be further restrained and enjoined from bringing any action or actions, proceeding or proceedings against the plaintiff or the •other tenants of the premises until the final determination of this action, and for such other, further and different relief as to the court may seem proper and just in the premises.' The complaint asks for no relief against Allen, but seems to be based upon the principle that a trust resulted in favor of the plaintiff, and that Allen held it as trustee for her, and that his conveyance of the land to Seaver was a violation of the trust, and entitled the plaintiff as the cestui ' que trust to have such deed from her trustee to Seaver declared void, and Seaver restrained from interfering with the plaintiff’s possession of the property. The action was thus brought as an action *508to enforce such a trust, and. was tried as such an actionno demand, was made in the court below for any relief based upon an equitable lien; and I think that the 'plaintiff must-stand or fall upon her right to the relief thus asked for. The defendants deny the allegations of the complaint. that this property wras purchased with the plaintiff’s money, and deny that the conveyance to Seaver was in fraud of the plaintiff. ■ ' •
The plaintiff testified upon the trial that this money which she sent to Allen was given to her by him; that the first sum of £180 was given to her in the spring of 1894, when Allen said : “ Here is this money * *. * for you to do with just whatever you like; ” and that this was followed by the delivery to the,plaintiff of £1;000 in • July, Í894, when he said that it “ would enable me to invest it in a way that I could look after my two sisters ” •—• and £170 in December, 1894. This money, aggregating $7,017.70, was retained by the plaintiff on deposit in an English bank until 1895, when it was transmitted to New York by three drafts payable to Allen’s order, and received by him in June, 1895. A part of it seems to have been deposited with the Metropolitan Trust Company in Allen’s own name. On June 5, 1895, Allen made a contract with one Rankin for the purchase of the premises in question, and at that time paid on account thereof the sum of $1,000. This sum was paid by Allen with his own money, as at* the time the payment was made the drafts had not been received from the plaintiff; and on July 1, 1895, when the deed of this property was delivered, Allen paid to Rankin $9,000 more, which included the money transmitted to him by plaintiff, making a total payment upon the delivery of the deed of $10,000. Allen gave to Rankin at' the same time two second mortgages of $2,500 each, and the property was conveyed subject to other mortgages upon the property, the actual consideration paid therefor being $55,000. Subsequently Allen paid on account of -the - mortgages held by Rankin the sum of $4,000, making the total amount paid by Allen $14,000, of which he had received from the plaintiff about $7,000;. and as a further payment for the property he had' assumed the payment of -mortgages for $40,000. There is also proof that Allen had deposited with the Metropolitan Trust ■ Company in the city of New York on April 1, 1895, the sum of $3,292.44 in the name of Emily Bryant, the plaintiff, payable to *509the said depositor, or to Louis J. Allen or her assigns. It is not disputed but that this was Allen’s money, and the object of making the deposit in the form it was is apparent from.a letter from Allen to the plaintiff in which he says that he made the deposit in that form so that the money would be hers if .anything happened to him. The plaintiff claims that upon such deposit the money became the money of the plaintiff, and thus it can be said that the whole amount of the payment of the $10,000 paid as the consideration of the conveyance to Allen was the plaintiff’s money. It is, however, apparent that no gift of the money to the plaintiff was intended. It was deposited by a certificate of deposit payable to the plaintiff or Allen. It was Allen’s money. By the form in which the deposit was made he continued in control of it, and when communicating the fact of having.made the deposit to the plaintiff he stated his intent in making it, which was inconsistent with the idea of a gift. The cases cited by the plaintiff, in which deposits made in a savings bank to the credit of another person, where the depositor or donor gives up all control of the property, putting it absolutely in the name of the donee, or where by express words the depositor creates himself the trustee of the donee, have been upheld as gifts, do not apply. This transaction shows that there was no intent to make a present gift. ' On the contrary, Allen intended to and did retain the custody and control of the money, and subsequently used it for his own purposes. Assuming that $7,000 of the $10,000 paid on account of the property at the time of this conveyance was money of the plaintiff’s, still the plaintiff was not entitled to have a resulting trust declared in her favor in this property, for she did not pay all of the consideration, and she was not, therefore, entitled to the relief demanded, viz., a declaration that the conveyance of Allen to Seaver was void. (Schierloh v. Schierloh, 148 N. Y. 106.)
There was, however, a question of fact presented upon the trial as to this $7,000 which the plaintiff sent to the defendant at his request. The defendant Allen swears that he delivered this money to the plaintiff for safekeeping; that he never gave it to her, and never intended to vest her with the title to it or give it -to her. Allen testified: “ I knew plaintiff in England, and I left in her care at Brighton, England, where she resided, $7,500, which amount she forwarded to me at my request at New York about the time of the *510purchase of said property. * * * Plaintiff at no time furnished me' with any moneys with which to make the purchase of this property excepting my own money which I had left with her as above mentioned and which she returned to me at my request.” Here was a distinct issue of fact as to the ownership of this property; and by the decision in favor of the defendant it must be assumed that all disputed questions .of fact were disposed of in favor of the defendant-—that the effect of the decision was the same as if there had been a general verdict of a jury, and the same presumptions arise in its support. (Amherst College v. Ritch, 151 N. Y. 320.) From the .opinion of the court below, it would appear that the court did riot pass upon this question of fact, but there is no finding by the court that any of this money was the plaintiff’s money, or belonged to her. There is nothing,, therefore, to justify a finding that the plaintiff was, entitled to any relief, and I do not think we are justified in reversing this judgment.
Judgment reversed, new trial ordered, costs to appellant to abide event-..