Lambert v. Lambert 42 A.D.2d 903

In an action in which a judgment of the Supreme Court, Kings County, was made on December 29, 1972, after a non jury trial, inter alia granting defendant a divorce, plaintiff appeals, as limited by his brief, from so much of the judgment as, upon the second cause of action in defendant’s “cross complaint ”, directed plaintiff to. pay defendant $29¿966, plus interest, representing one half of the funds on deposit in a joint bank account. Judgment reversed insofar as appealed from, on the law, without costs; new trial granted on the second cause of action in defendant’s cross complaint; and said cause of action is severed. The appeal did not present questions of fact. When a husband opens a joint bank account in the names of himself and his wife, with a right of survivorship, it is presumed that he intends a joint tenancy with his wife and that she thereby receives a present gift of a moiety or one half of the-value of the property on deposit (Matter of Granwell, 20 N Y 2d 91; Matter of Brieker [Krimer] v. Krimer, 13 N Y 2d 22, 27-28; Banking Law, |§ 675). The presumption that a joint tenancy was intended, however, is merely a rebuttable presumption as to funds withdrawn prior to the death of the depositor (Matter of Brieker [Krimer] v. Krimer, supra, p. 27; Matter of Porianda, 256 N. Y. 423; Pendley v. Pendley, 163 Mise. 571, 574). “ For the depositors themselves, the form [of the account] is not conclusive in any contest during their joint lives as to the title to the moneys, nor conclusive after .the death of either as to moneys then withdrawn” (Moskowitz v. Marrow, 251 N. Y. 386, 396-397). In our opinion, it was error for the trial court to exclude evidence offered by plaintiff which tended to rebut the presumption of joint ownership. Rabin, P. J., Hopkins, Munder, Martuscello and Latham, JJ., concur.