In re the Estate of De Fonce

In a proceeding by an administratrix to discover property, the decedent’s son, Salvatore M. De Fonce, appeals from so much of a decree of the Surrogate’s Court, Westchester County, entered June 3, 1965, as directed him; to deliver to the administratrix: (a) $2,000, representing a payment made February 1, 1963 by cheek to the decedent’s order and deposited in appellant’s personal account and (b) $2,314.48, representing the amount transferred to said account from a savings account in the names of appellant and the decedent. Decree affirmed insofar as appealed from, with costs payable by appellant personally. The savings account was not made payable “ to either or the survivor of them ” and there was no evidence that the account was intended for any purpose except the convenience of the depositor (the decedent). Hence appellant is not aided by any presumption (cf. Banking Law, former § 239, subd. 3 [now § 675, subs, (a), (b)]) and was properly ordered to pay over to the administratrix the amount withdrawn by him from the account (Matter of Fenelon, [820] 262 N. Y. 57; McDermott v. Bennett, 253 App. Div. 580, affd. 279 N. Y. 579), as well as the $2,000 cheek. Beldock, P. J., Ughetta, Rabin, Hopkins and Benjamin, JJ., concur.