Ackerman v. Herrick

This is an appeal from an order changing the place of trial of an action from Orange to Ulster county. There is not such a preponderance of evidence in the affidavits that we are enabled to say there was such an abuse or misuse of discretion in the court below as to warrant us in reversing the order. The respondent claimed and seemed to have a larger number of witnesses whose convenience would be promoted by a change of venue, and we cannot say that he would not be entitled to produce them upon the trial, even if the appellant should stipulate to admit copies of the bank books. Considering all the facts and circumstances, we think the order should be affirmed, without costs.

DYKMAN, J., concurs.

(concurring.) There is nothing in the papers which tends to invalidate the title of the defendant to the Newburgh Savings Bank book. The deceased intestate made the deposit and took a book in the name of “J. K. Ackerman, in trust for Mary A. Herrick.” This raises an inference of an intent to give the money and create herself the depositor, the trustee of the donor. Martin v. Funk, 75 N. Y. 134; Mabie v. Bailey, 95 N. Y. 206. One of the other bank books was deposited in the name of the defendant, and there is nothing stated in either the complaint or affidavits *609which constitutes any claim by the administratrix to it. The other book represents deposits made by the deceased in her own name. This book contains this indorsement: “In case of my death, to my daughter Mary Ann Herrick. Kingston, Jany. 1, 1890.” The defendant states in her affidavit that this book, with its indorsement on it, was delivered to her at about the date of the assignment. If this was so, and she agreed to pay the interest to the deceased for her life, the gift would be complete. Young v. Young, 80 N. Y. 422. This transaction is one which aróse in Ulster county, and requires the witness to the transfer, as well as such, if any, besides the defendant who can testify to the delivery of the book in January, 1890. The order changing the place of trial from Orange county to Ulster was therefore right, and the order should be affirmed, with costs and disbursements.