The complaint is for moneys deposited with the defendant, Baldwins Bank of Penn Yan, which the plaintiff claims it “ received on deposit and agreed to re-pay to this plaintiff, or to his order on demand.” The bank book for these deposits • was made out in the names of “ Mr. or Mrs. H. E. Chilvers.” Some of the deposit slips were made out to them jointly and some in the alternative. The account on the books was in the names of Mr. and Mrs. H. E. Chilvers. Moneys were withdrawn from this account by Mrs. Chilvers during her lifetime, and plaintiff claims that these moneys were illegally paid. The answer denies all the allegations of the complaint, except the incorporation of the defendant bank. There is an issue as to the ownership of the account and other issues are presented in the answer relating to the withdrawal of the moneys with the consent of the plaintiff, the beneficial use of the moneys by the plaintiff, the running of the Statute of Limitations; ratification and confirmation of the withdrawals, and estoppel by reason of delay by the plaintiff in asserting his alleged cause of action. These defenses, except that relating to the contract between the plaintiff and the bank, are not met by any affirmative evidence on the part of the plaintiff, and there is an issue, therefore, upon these matters as well as upon the ownership of the account.
The motion for summary judgment is denied, with ten dollars costs. So ordered.