Dykman, J. This action was brought to recover the amount of a deposit in a savings bank to the credit of the plaintiff, who was then unmarried, and named Mary Barker. The complaint stated that prior to July 30,1884, there was on deposit in the Bowery Savings Bank in the city of Hew York to the credit of Elvira Harbeck, in trust for the plaintiff, the sum of $986; that about that time Elvira Harbeck^drew such money out of the bank, and converted the same to her own use.
Mrs. Harbeck is dead, and the action is brought against her executors. Upon the trial of the cause, the defendant’s counsel made an admission of the foregoing facts stated in the complaint. Upon the trial the counsel for the defendant sought to prove, by way of defense to the action, that the plaintiff was ignorant of the deposit so made for her benefit until after the death of the depositor.
A verdict was directed in favor of the plaintiff for the amount claimed, and the defendants have appealed from the judgment, and from the order for costs, against the defendant. Under a long line of decisions by the courts, it was quite immaterial whether the plaintiff had knowledge of the deposit in her favor or not. Such deposit was an executed trust, depending upon no act of the plaintiff to make it valid or available to her. The case of Martin v. Funk, 75 N. Y. 134, seems to be decisive of this case.
In that case a deposit was made in a savings bank of a sum of money belonging to the depositor in trust for the plaintiff, who was ignorant of the deposit so made until after the death of the depositor. In an action to obtain possession of the pass-books, and to recover the deposits, it was held by the court of appeals that the transaction was a valid and sufficient declaration of trust, and passed the title to the money deposited to the beneficiaries, and constituted the depositor a trustee.
It seems to be plain, therefore, that the judgment should be affirmed. There was no question made in the argument before us respecting the allowance of costs, and we assume that the point was abandoned. The judgment should be affirmed, with costs.
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