McMahon v. Cronin

Smith, P. J. (dissenting):

I agree if the gift be claimed from the simple fact of the form of the deposit that it would be competent to show what was said at the time that the deposit was made. Inasmuch, however, as the deposit was made in pursuance of an agreement theretofore made xvith his wife to put the certificate in her name, it does not seem to me right that this man after having made that agreement can alter its effect by any declarations made at the time that he made the deposit not in the presence of his wife. Suppose in pursuance of a contract between a man and his wife the man had deposited in her name in *847the bank $1,000, could he after her death claim that the $1,000 was his because when he deposited the moneys he had told the cashier that the moneys were put in his wife’s name to avoid taxation for instance, or for any other .specific purpose? It seems to me rank hearsay. For whatever purpose he made the agreement to take the certificate in her name he made it for the purpose of getting possession of another certificate which was already in her name, and she had the right to assume when the new certificate was brought back in her name that her title was not impaired by some declaration her husband might have made at the time he deposited the money and took out the certificate not in her presence. I, therefore, dissent.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.