I dissent. The money was plaintiff’s own individual earnings. He says that in making the deposit he had no intention of making a gift to his wife; it was made in her name because he already had $3,000 on deposit to his credit, and acted on the advice of an officer of the bank; that the bank book was handed direct to him and thereafter remained continuously in his possession; that on January 23, 1895, five months after the initial deposit was made, without the knowledge of his wife, he *169deposited $2,000 more of his own money in such account, and thereafter, and on January 2, 1897, he withdrew, without his wife’s knowledge, $2,060 and used it in his business, and on March and June following he again deposited $2,000 of his own money to the credit of the same account, without her knowledge. The respondent, when testifying first upon the trial, said that her husband, the plaintiff, gave her a check for $3,000, which she personally took to the bank and deposited in her own name; that she had withdrawn no money from the account except the interest. She gave no evidence tending to show that the bank book was ever in her possession, except that she said it was kept in her husband’s safe, to which both he and she had access. This does not establish a delivery, or a consummated gift because of such delivery. (Young v. Young, 80 N. Y. 422; Jackson v. Twenty-third St. Railway Co., 88 id. 520; Tyrrel v. Emigrant Industrial Sav. Bank, 77 App. Div. 131; Matter of Bolin, 136 N. Y. 177; Lehr v. Jones, 74 App. Div. 54; Matter of Van Alstyne, 207 N. Y. 298.) The respondent does not claim that she put the book in the safe. When the bank book was shown to respondent, she insisted that the $3,000 was given her and deposited at one time, and that the book shown her was not the one evidencing the deposit to which she had testified, but later she testified that it must have been $1,000 her husband gave her first; that her recollection was that it was $3,000; that she must have made the subsequent deposits appearing in said book; that she could not recall making such deposits; that she did not receive the $2,060 withdrawn, did not recall its withdrawal and had no knowledge of the later deposits of $2,000.
The learned trial court has found as a fact that the respondent delivered to the bank the sum of $3,000 given her by her husband, which it received on deposit, but I am unable to find any probative evidence supporting the finding. The evidence as to the withdrawal of the interest is that both the plaintiff and defendant, respondent, on different occasions received it, but is conflicting as to who used it, and in this connection it is to be noted that in July, 1909, when the plaintiff was in Europe, the semi-annual interest payable on the first day of the month was not withdrawn or credited on the book until *170January 17, 1910, after his return. The learned trial court says that “ When the husband and wife went together to the bank and deposited the money in the wife’s name, it was prima facie a gift and changed the legal title to the wife. It not necessary, therefore, for the husband to show that notwithstanding appearances the equitable title remained with him.” In other words, that the form of the account of itself established a gift. I do not understand this to be the law of the case. There is no presumption in favor of a gift, and the burden was upon the defendant at all times to establish the essential elements of a gift by satisfactory proof. (Beaver v. Beaver, 117 N. Y. 421; 137 id. 59, 67; Matter of Bolin, supra; Schneider v. Schneider, No. 1, 122 App. Div. 774, 778; Kelly v. Beers, 194 N. Y. 49, 55; Tompkins v. Leary, 134 App. Div. 114.)
I think the respondent not only failed to sustain the burden of establishing a gift inter vivos within the rule declared by this court in Tompkins v. Leary (supra), but that the probative evidence so strongly predominates in favor of plaintiff’s contention that he never intended to, and in fact never did make the gift to the respondent, that the judgment should not be permitted to stand. I shall, therefore, vote for a reversal. •
Carr, J., concurred.
Judgment affirmed, with costs.