Haynos v. Krupczyk 14 A.D.2d 507

Memorandum: The memorandum decision of the trial court does not comply with section 446 of the Civil Practice Act. The complaint contained two causes of action both relating to certain bank accounts and life insurance policies. The first cause is based on claimed false and fraudulent representation made by defendant to decedent. The second cause seeks to impress a trust upon the described assets. The trial court dismissed the first cause at the close of the evidence. The question submitted to the jury for an advisory opinion related solely to the second cause. After the jury had retired the court “revoked” its ruling dismissing the first cause. In the judgment plaintiff was granted relief “ for all of the causes of action set forth in the * * * complaint”. The decision, however, contains no findings of fact except in conclusory form. Proper findings and conclusions of law should be made as to each cause of action. In so doing consideration must be given to the fact that one of the assets is a joint account in a savings bank. “ The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence * 8 * of the intention of both depositors to vest title to such deposit * * $ in [the] survivor” (Banking Law, § 239, subd. 3). In addition “Where there is question concerning the competency of the depositor, or the genuineness of her act in creating the deposit, it is not made conclusive by section 239.” (Matter of Creekmore, 1 N Y 2d 284, 291.) In the light of these principles and the proof in the record findings of facts deemed established by the evidence and essential to the conclusions reached should be made by the trial court. (Appeal from judgment of Erie Trial Term after answering of questions 'by the jury, adjudging plaintiff administrator to be entitled to the disputed bank accounts and insurance policies, and awarding plaintiff judgment.) Present —Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.