(dissenting in part). I dissent in part and vote to affirm, on the law.
I agree with the conclusion arrived at by the majority in regard to the account in the Ogdensburg Trust Company.
There is a presumption that the joint savings account in the St. Lawrence County Savings Bank, in the very form in which the account stood, was held by the .parties named as depositors as joint tenants with the right of survivorship, whatever the source of the deposit; and the burden of proof in refutation was on the challenger of such title (Banking Law, § 675; Poersch v. Eldridge, 36 A D 2d 193, 195; Mitchiner v. Bowery Sav. Bank, 31 A D 2d 803; Mittman v. Mittman, 30 A D 2d 867, affd. 24 NY 2d 826; Walsh v. Walsh, 29 A D 2d 991).
Among other things, there was proof that decedent told respondent, “I want your name added to my two bank books * * * I don’t know if I will ever get out of the hospital that decedent executed the form from the St. Lawrence County Savings Bank reading: “You are hereby authorized and directed to add to my account number 33232 in your bank, the name of Nancy Jean Jarvis. And in such manner that either of us shall have full power to draw any or all the money which is now, or may be hereafter standing to the credit of said account ’ ’; and that respondent gave the bank books back to decedent “ after everything was added on to them.” It cannot be said, as a matter of law, that, on the lengthy record before him, the Surrogate erred in finding that appellant had not fulfilled her burden of proof and that the presumption had not been overcome.
Greenblott, J. P., Sweeney and Main, JJ., concur with Kane, J.; Cooke, J., dissents in part and votes to affirm in a separate opinion.
*451Decree modified, on the law and the facts, by reversing so mnch thereof as dismissed the petition of the executrix to recover certain funds from the St. Lawrence County Savings Bank, and the proceeding remanded to the Surrogate of St. Lawrence County for appropriate findings as to the disposition of this account and for the taking of additional testimony if necessary, and, as so modified, affirmed, without costs.