Kelly v. Albany Trust Co.

Kellogg, J.: The facts in this case are substantially the same as in Kelly v. Home Savings Bank (103 App. Div. 141), except that no officer of the .trust company was sworn and the only evidence as to what took place at the trust company is the books and papers of the trust company, as follows: Exhibit B, dated- January 12,1903.— “ The Albany Trust Company will please add the name of Mrs. Sarah E. Kelly as owner and creditor with me of all moneys heretofore or which may hereafter be deposited in the said bank , under its account No. 2104, together with all the interest which has been or. may hereafter be credited to the said account, with full authority for each or either of us or the survivor of us to draw out from the said bank the whole' or any part of such moneys or such interest. (Signed) Mrs. K. V. Beers. Witness, A. P. Adams, Jr.” . Exhibit C.— “ Albany Trust Co. Authorized signature of K. V. Beers. Please find authorized signature which you will recognize in payments of funds or the transaction of business, Special Account No. 2104, K. V.' Beers, Address 87 Livingston Ave. Endorsed by Charles Beeney. To the Albany Trust Company, Albany, N. Y.” [101] Exhibit D.— “ Albany Trust Co. Authorized signature Sarah Kelly. . Special Account No. 2104, Sarah Kelly. Please find authorized signature which you will recognize in payments of funds or the transaction of business. Sarah E. Kelly, Address 87 Livingston Ave. Endorsed by---. To The Albany Trust Co,, Albany,, N. Y.”' It is also admitted that the bank book was issued September 5, 1902, in the name of Kate Y. Beers, and the writing underneath “ Or Airs. Sarah E. Kelly, payable to either or the survivor of either,” was added January 12, 1903. Bank book No. 2104 produced was indorsed : “ Special Interest Account with Kate Y. Beers.” The reading on the inside was “ No. 2104, The Albany Trust Company in account with Kate Y. Beers or Mrs.. Sarah E. Kelly, payable to either or the survivor of either.” Within Hallenbeck v. Hallenbeck (103 App. Div. 107), Augsbury v. Shurtliff (180 N. Y. 138) and the Kelly case, above cited, the judgment is right. The codicil was properly excluded. It only disclosed Airs. Beers’ intent at the time it was executed. The rights of the parties had been previously fixed." The judgment should, ■ therefore, be affirmed, with costs. All concurred, except Cochrane, J., dissenting in an opinion, in which' Chester,, J., coneuiTed.