This is an appeal from a final judgment after a trial without a jury, which determined that the husband of the defendant, was the sole owner of certain property including funds in a jointly held bank account.
While a presumption of joint ownership is created by the Banking Law (§ 239, subd. 3), it is rebuttable prior to the death of either of the named depositors (Marrow v. Moskowitz, 255 N. Y. 219). Since both parties were alive at the time of the trial, the presumption was not conclusive upon the court and could be overcome by competent evidence. By its determination, the trial court so found.
*191In her answer, the defendant interposed numerous defenses and counterclaims, some obviously inconsistent. She alleged that all of the funds were her sole property; that they represented loans which she had made to the plaintiff; that by agreement the moneys were joint property.
In support of her claim, the defendant testified that she had helped her husband in his business and was therefore entitled to half the money, but she finally admitted that the money came from the plaintiff, that it was never hers, and that there was no partnership agreement. She asserted that the enterprise in which she claimed an interest was the “ booking business ”.
The plaintiff unequivocally denied that the funds involved were the fruits of any illegal activity. Without substantial contradiction, he testified to Ms association with two enterprises whose legitimacy was not seriously questioned. Thus a question of fact was presented as to the source of the money. The trial court’s determination upon that issue finds ample support in the record.
Of the total, only the sum of $500 was concededly used for the illegal purpose of a bank account which, at defendant’s suggestion, was opened in the name of her brother, a paroled convict, in order to assist Mm in demonstrating to Ms parole officer that he had a savings account.
Solely from the defendant’s testimony, it is urged that the conclusion be drawn that the plaintiff’s business consisted of an illegal activity, the booking of bets.
The dissent herein, based as it is upon a premise not found by the trial court, takes the view that the funds which are the principal subject of the action derive from an illegal source, and from that assumption proceeds to hold, upon the law as reflected in the cited cases, that there can be no recovery. We do not quarrel with the cases cited nor with the principle enunciated in them. We do hold, however, upon the facts as found by the trial court and fully justified by the record, that the cases relied upon are inapplicable here.
Because of their unsavory associations and background, the litigants present a classic example of credibility, always reserved for determination by the trier of the facts. The trial court had the opportunity to observe and listen to the litigants, and to evaluate their testimony. A pure question of fact was thus presented. The trial court’s conclusion is fully supported by the credible evidence and should not be disturbed (Amend v. Hurley, 293 N. Y. 587, 594; Boyd v. Boyd, 252 N. Y. 422, 429).
The judgment should be affirmed.