(184 N.Y.S.)

ture on account of labor union troubles. The superintendent of buildings verbally warned the relator's officers, when the violation was filed, that if they disobeyed the violation a "stop order" would issue. The relator obeyed the order of the superintendent. The relator then wrote to the superintendent of buildings, requesting information as to the respective points in which relator's steel work violated section 20 of the Labor Law (Consol. Laws, c. 31) and section 195 of the Building Code, to which the superintendent replied by communication dated March 22, 1920, in part as follows:

"As steel columns are ordinarily fabricated in two and three story lengths, it is my opinion that not more than three stories of steel work should be erected in advance of that part of the steel frame in which the arches have been placed. This interpretation, I think, is further borne out by the fact that the law (Labor Law, § 20) before its amendment in 1911 or 1913, specified the tiers which should be filled in as the building progresses."

From this order the relator appealed under section 719 of the charter to the board of appeals. The corporation counsel was present and appeared generally for the superintendent of buildings. The board of appeals by a vote of four to three sustained the action of the superintendent of buildings, and the relator takes this proceeding to review the action of the said board.

The application involves primarily the construction of section 20 of the Labor Law and section 195 of the Building Code, and the relator contends that the superintendent of buildings had no power to make the order in question, which commanded the relator to cease the erection of steel frames, if they are more than three stories in advance of that part of the steel frame in which concrete filled arches had been placed, nor has he power to declare it a violation of law to fail to install fireproof arches as the steel construction progresses. Section 20 of the Labor Law reads as follows:

"Protection of Persons Employed on Buildings in Cities. When constructing buildings in cities, where the plans and specifications require the floors to be arched between the beams thereof, or where the floors or filling in between the floors are of fireproof material or brickwork, shall complete the flooring or filling in as the building progresses. If the plans and specifications of such buildings do not require filling in between the beams of floors with brick or fireproof material all contractors for work, in the course of construction, shall lay the underflooring thereof on each story as the building progresses."

Prior to 1913, the words "shall complete the flooring or filling in as the building progresses" were followed by the words "to not less than within three tiers of beams below that on which the iron work is being erected." This latter sentence about the three tiers of beams was stricken out by the Laws of 1913, chapter 492. Section 195 of the Building Code reads as follows:

"Floors to be Filled in or Covered Over. If the floors of any building are to be of fireproof construction the floor filling shall be completed as the building progresses. If the floors consist of wood beams the under flooring, when double flooring is to be used, shall be laid on each story as the building progresses; when double floors are not to be used, the floors two stories below the story where the work is being performed shall be kept planked over. If the floor beams are of iron and steel, the entire tier of iron or steel beams on

which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the approved plans for stairways and shafts, shall be thoroughly planked over."

It is conceded that at the time of the issuance of this order by the superintendent of buildings the relator had, reached a height of seven stories, and that said building was entirely open, and at neither of the stories had the floors been filled in, as required by the sections above referred to, nor had any protection whatever been provided for the workingmen engaged in and upon said building. In construing the provisions of section 20 of the Labor Law, as amended, regard must be had to the mischief which the amendment was supposed to correct. It is apparent that the three-tier limitation was deemed too rigid, and that the legislative intent in making this amendment was to remove the limitation of the distance between the working floor and the filled in arches to any rigid or fixed distance, and to leave the regulation of such distance to the sound discretion of the superintendent of buildings, because that section must be read in connection with section 406 of the New York Charter, which gives the superintendent exclusive jurisdiction, subject to and in accordance to the general rules and regulations to be established by the board of standards and appeals, of the construction, alteration, and structural changes in and removal of buildings and other structures erected, or to be erected, within his borough, with power to appoint subordinate officers, including inspectors, engineers, etc., and section 411 of the charter, which gives him power, subject to the provisions of law, to pass upon any question relating to the construction and alteration of all buildings. This was the view taken by the board of appeals upon the hearing, April 27, 1920, as it is expressed by John P. Leo, chairman of said board, which is as follows:

"Chairman: Gentlemen, motion before you to reverse the decision of the superintendent of buildings and to grant the appeal and set aside the stop order of the superintendent. First, before voting, I want to say that, while I have sympathy with the proposition offered, and think there should be some way to permit men to go on, yet this is a matter peculiarly within the province of the superintendent of buildings. He has an inspection force, it is up to him to make daily inspections, and he is the man to judge if there is necessity for covering or not. If we make a cast-iron rule, it will be a hardship to carry it out. If he, the superintendent, says it is unsafe to go higher, I think his order should be sustained. He is the one primarily responsible for it. We, without inspectors and without knowledge of conditions, could not say that the stop order is not proper."

The commissioner must not abuse the discretion vested in him by acting capriciously or arbitrarily, and unless his action is arbitrary or capricious it should not be disturbed by injunction. I fail to find anything arbitrary or capricious in the action of the building superintendent in the instant case. As a matter of fact his discretion was exercised in favor of the relator in allowing it the full three-tier limitation. An appeal may be taken under section 719 of the charter to the board of appeals from any order, requirement, decision, or

(184 N.Y S.)

determination made by him, except in cases specified in the statute, which have no application to this case.

It is provided under section 719, subdivision 5, that where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the law the board of appeals shall have power in passing upon appeals to vary or modify any rule or regulation, or the provisions of any existing law or ordinance relating to the construction, structural changes in, equipment, alteration, or removal of buildings or structures of vaults and sidewalks appurtenant thereto, so that the spirit of the law shall be observed, public safety secured, and substantial justice done. While it is true that this section vests the board of appeals, in certain cases, with the power to vary or modify a rule or regulation, or the provisions of the existing law or ordinance relating to the construction of buildings, still coupled with that power is the injunction that the spirit of the law shall be observed.

The board of appeals has not refused jurisdiction herein, as claimed by the relator. It entertained the appeal, and had it seen fit might have modified the order by a provision for planking, under the provisions of section 195 of the Building Code, or by some other provision, and still observe the spirit of the law which is the protection of persons employed on buildings in cities. The board, however, decided that in the instant case the superintendent of buildings, who was better equipped to handle the matter because of the facilities for inspection at his disposal, had acted wisely and within his discretion, and that it would not modify or change the same. The court should not substitute its judgment for that of the board in the absence of legal error or abuse. I fail to find a semblance of either. The restraining order is therefore denied.

Ordered accordingly.

(112 Misc. Rep. 222)

MORRIS v. SHEEHAN.

FARLEY v. SAME.

(Supreme Court, Special Term, New York County. June, 1920.)

1. Trusts 2-Law of state of decedent's residence governed deposits in bank in trust for another.

In an action to determine the ownership of trust funds on deposit in a savings bank in New York, in trust for nieces of decedent, residing in Massachusetts, the law of Massachusetts would govern as a matter of comity between the states, and where no public policy operated in favor of the claimants residing in a foreign country.

2. Trusts 59 (4)—Savings bank deposits, made in trust, without notice to beneficiary, held revoked by depositor's will.

Where a Roman Catholic priest, without the knowledge of his two nieces, residing in Ireland, had made deposits in a savings bank in New York City in trust for each of them, there was only a tentative and revocable trust, raising merely a presumption of ownership, rebutted by evidence that he had treated the deposits as his own, and had made them in that form to obtain interest, and the conceded law that the absolute interest was in him at the instant of his death, so that they fell into the residue given by his will.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Suits by Bridget Morris, née Farley, also called Bridget Farrelly, and by Anne Farley, also called Anne Farrelly, against a savings bank, to determine ownership of funds deposited therein by Francis J. Lynch, deceased, in which John T. Sheehan, as ancillary executor, was substituted as defendant, through interpleader. Cases tried together, and judgment for defendant dismissing them.

Louis Thompson, for plaintiffs.

Nicholas Dietz, of Brooklyn (Luke D. Stapleton, of New York City, of counsel), for defendant.

FORD, J. These are two actions concerning the ownership of funds held on deposit by a savings bank in New York.

The defendant is ancillary executor of the estate of Rev. Francis J. Lynch, a Roman Catholic priest, who died a resident of Massachusetts in 1907. In his lifetime the testator had in form deposited in the bank a fund in trust for each of the plaintiffs, who are residents of Ireland and nieces of the testator. They had no knowledge of the transactions before his death. The slight evidence to the contrary is of too little probative value to merit serious consideration.

The plaintiffs commenced suit against the bank for possession of the moneys, and the ancillary executor was substituted as defendant through interpleader. Both cases were tried together, and may be decided as one, since they involve precisely the same legal principles and raise identical questions of law.

[1, 2] First to be determined is whether the law of Massachusetts or that of this state controls. The plaintiffs insist that the ownership of the deposits must be determined by the law of this state, while the defendant contends for the law of the other state as determining the question.

Under the law of either state it is conceded that the absolute ownership of the funds was in the testator until the instant of his death. Under the law of Massachusetts the moneys fell into his residuary estate, and were subject to disposal by his will. This residuary estate, exclusive of the disputed moneys, amounted to upwards of $100,000, constituting the bulk of his property, and was given by his will to the bishop of his diocese as a corporation sole for charitable and religious purposes.

There is no public policy operative in favor of the plaintiffs, since they are residents of a foreign country. By comity between our states, it is well established that the disputed ownership of the personal property of a decedent resident in another state is determined by the law of that state. I am of opinion that the law of Massachusetts must be held to be controlling under the circumstances of these cases.

But even under the law of this state it seems to me the defendant must prevail. Plaintiffs rely upon the case of Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711, 1 Ann. Cas. 900, which lays down the rule concededly applicable to this controversy:

"A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will,

(184 N.Y.S.)

until the depositor dies or completes the gift in his lifetime by some unequiv. ocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary, without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor."

Under this rule the facts in the present cases raise a presumption of ownership merely. But a presumption is not conclusive. It may be rebutted, and the defendant has met this issue squarely. Indeed, the long trial of the cases was almost entirely taken up with this phase of the controversy. The defendant set out to prove that the testator never intended that the funds on deposit should pass to other ownership, either during his lifetime or afterwards.

It is shown that since 1869 the testator had made deposits in a large number of savings institutions in this state, as well as in Massachusetts, in his own name and in the names of others. Since deposits over a limited amount in one person's name would not draw interest, it was the practice of the decedent to open another account, in which any excess might be deposited and thus made to earn the usual savings bank re

turn.

Separate accounts to the number of 164 were thus opened in his own name and nominally as trustee for numerous relatives, friends, and acquaintances. Sometimes they were opened and active long after the death of the person for whose benefit they in form stood. In one case, at least, a seemingly fictitious name was used. At all times and in all ways the testator treated all these deposits, including those standing in the names of the plaintiffs, as his own. He added to them, drew from them both principal and interest, closed them, opened new accounts with the moneys so withdrawn, in the names of different persons, and never seems to have thought of ownership or color of interest in any of the accounts, outside of himself individually, except that he always seems to have regarded the funds as equitably belonging to his church, from which they came to him. He so repeatedly declared during his lifetime. The terms of his will in death bear out the sincerity of these professions made during life.

It is an impressive array of facts which the defendant adduces in proof of the absence of intention to give these particular relatives the funds which happened to be deposited in their names at the time of his death. The conclusion is irresistible that he never intended any of the deposits to pass out of his ownership during life or out of his estate after death. The presumption of ownership in the plaintiffs is amply rebutted even under the law of New York.

As to the objection of plaintiffs to the receipt of evidence tending to show the practice of defendant in respect of his multitudinous bank accounts after the two deposits in question were made and as to the motion to strike it out, it was received as the basis for determining whether there ever was a gift made by the testator, not in derogation of any previous acts or words of his constituting such gift. The gift could not be complete till the instant of his death in any event. All