The original plaintiff herein was Charles L. Schwartz, who brought suit by Leonard M. Halpern, a guardian ad litem, duly appointed by order of a justice of the Supreme Court. Schwartz was adjudged an incompetent on April 10, 1939, and on June 13, 1940, Theodore M. Gibbons, Jr., who on November 30, 1939, had been duly appointed ancillary committee of the property of Charles L. Schwartz, was substituted in place of the original plaintiff herein. v____
There are two causes of action stated in the complaint: (1) To recover damages from defendant, who is plaintiff’s wife, in the sum of $12,570.94, for the alleged conversion of the proceeds of accounts in three savings banks held jointly in the names of Charles L. Schwartz and Margaret F. Schwartz, his wife, and (2) to replevy certain articles of personal property which plaintiff claims defendant possesses and wrongfully withholds.
As to the first cause of action plaintiff testified that the money deposited in the joint accounts was his property and that these funds had all been withdrawn by his wife. Concededly, the three savings bank accounts were “ held jointly in the names of Charles L. Schwartz and Margaret F. Schwartz,” and the documentary proof produced by plaintiff showed that the accounts were in the names of both plaintiff and defendant, the proceeds of each account payable to either or to the. survivor.
While the proof as to the first cause of action was insufficient to support a suit for conversion, we are of the view that the trial court should not have directed a verdict for defendant. We do not agree, however, with plaintiff’s contention that a verdict upon this cause of action should have been directed in his favor.
The opening of a bank account in the form prescribed by subdivision 3 of section 239 of the Banking Law creates a presumption that the interest of the depositors is that of joint tenants. (Marrow v. Moskowitz, 255 N. Y. 219; Moskowitz v. Marrow, 251 id. 380, 389.) Such presumption, however, is not conclusive and may be overcome by proof that the depositor when making the deposit had no intention to create a joint tenancy. (Matter of Porianda, 256 N. Y. 423, 425.) The proof adduced by plaintiff on the trial of this action was manifestly inadequate to destroy the presumption of joint tenancy. Plaintiff’s only testimony in this connection was in answer to a question as to whether it was his recollection that the savings accounts were trust accounts at all times. His answer was in the affirmative and that “ They were made that way, in case something happened to me the money would be turned over to her. That was the understanding.” This cleárly is not enough to overcome the statutory presumption,
*796As to the second cause of action, there was a complete failure of proof of the value of the chattels sought to be replevied or that any demand had ever been made on defendant for their delivery.
In view of the facts disclosed, we think that a new trial should be ordered as to both the first and second causes of action.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Martin, P. J., Glennon and Callahan, JJ., concur; Dore, J., dissents from the direction for a new trial and votes for direction of judgment in favor of plaintiff.