The action' is brought to recover the amount of a deposit in the defendant, savings institution, the account and deposit book being in the following form, viz: “ Howard Waldron Waterman or Theodore H. Waterman, payable to either or the survivor of them.”
Said Theodore H. Waterman died on or about the 11th day of September, 1913, leaving him surviving *275the said Howard Waldron Waterman, who is an infant, and the plaintiff as his general guardian brings this action to secure the payment of such deposit to her as such general guardian.
William E. Woollard, as the executor of said deceased, has the deposit book in his possession, and has filed a paper with the defendant stating that he claims that such deposit belongs to the estate of said deceased and demands payment of the same. The defendant asks on this motion that he be substituted for it as defendant in the action.
Under the present Banking Law (Laws of 1914, chap. 369) it is provided in section 250 that in “ actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons not parties to the action, who claim the same fund, the court in which the action is pending, may on the petition of such savings bank * * * and without proof as to the merits of the claim, make an order amending the proceedings in the action by making such claimants party defendants thereto.”
Subdivision 2 of section 248 of said Banking Law provides that, with certain exceptions not material here, “ a savings bank shall not pay any dividend or deposit * * * unless the pass book of the depositor be produced and the proper entry be made therein at the time of the payment. ”
Manifestly while the executor withholds such passbook from the plaintiff she' cannot produce it to the defendant for the purpose of having any entries made therein. In the claim filed by the executor with the defendant no fact is stated showing upon what the claim is based, but under the statute as it now exists the court has power to make such claimant a party without proof of the merits of the claim. It is not apparent what claim the executor can have to the fund *276deposited as this was, as against the survivor, to whom by the form of the deposit it is expressly made payable. I do not think under those facts the present defendant should be' dismissed from the action. The claimant, however, should be brought in because he has the pass-book under his control. When both are in the action as defendants, the court may proceed to determine the rights and interest of the several parties to the fund. There is no need of having the moneys in controversy paid into court to await the final determination of the action, but they should remain with the bank to the credit of the action until final judgment therein and be entitled to the same dividends as other deposits of the same class, to be paid in accordance with the final judgment. Banking Law, § 250, subd.2.
Ordered accordingly.