Daniel Tyrrel, Appellant, v. The Seamen's Bank for Savings, Respondent

Daniel Tyrrel, Appellant, v. The Seamen’s Bank for Savings, Respondent. Parties— an alleged claimant of a savings bank deposit and Ms legal representatives ■ cannot both be brought in as pa/rties defendant in an action therefor. In an action brought against a savings bank to recover the amount of a deposit made by one John Sweeney, which the plaintiff claimed had been given to him by said Sweeney, the savings bank is not entitled to make parties to the action- “ John Sweeney and all persons unknown, being herein generally described as the widow, next of kin, executors, administrators or assigns, if any, of said John Sweeney,” because if Sweeney be alive and a claimant of the deposit, his personal representatives are not proper parties to the action, and if he be dead, then his personal representatives, and not he, are proper parties. Appeal by the plaintiff, Daniel Tyrrel, from an order of the. Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1900, making as parties to the action “John Sweeney and all persons unknown, being herein generally described as the widow, next of kin, executors, administrators or assigns, if any, of said John Sweeney.” A. '. . It appeared that one John Sweeney opened an account in the defendant bank in January, 1891, and the plaintiff claimed that the said John Sweeney gave to him said account and said book. Theodore Primee, for the appellant. W. W. Thompson, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : There does not seem to be any authority for the order appealed from. If John Sweeney is a claimant of the fund' in the hands of the savings bank, certainly his widow, next of kin, executors, administrators 0r assigns, if any, cannot be such claimants; and section 451 of the Code was not intended to permit the making of persons parties who, under no circumstances, could have any claim or interest in the action. The case of Town of Hancock v. First National Bank (93 N. Y. 82) expressly holds that this provision Of the Code authorizing a plaintiff who is ignorant of the name of a defendant to designate him in the summons by a fictitious name, implies an action commenced and a defendant sued or intended to-be sued whose name is unknown. Therefore, if John Sweeney is a claimant, his personal representatives would not be proper parties to the action; and if John Sweeney is dead, then he would not be: a proper party to the action, but his personal representatives would.. Under the- rule laid down in the case cited there must be some defi- , nite allegation of claim which has its foundation in common sense, at least, in order to permit a person to be made a party by a fictitious name under the section in question. - The order appealed from should bé're versed, with "ten dollars costs- and disbursements, and the motion denied, with ten" dollars costs, with leave, however, upon payment of such costs and disbursements-to apply upon néw papers, if the defendant shall be so advised, to-bring in new parties claimant. Present—Van Brunt, P. J., Bumsey, Patterson, O’Brien and McLaughlin^ JJ-. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave, however, On pay- . inent of such costs and disbursements to apply upon new papers, if' the defendant shall be so advised, to bring in new parties claimant-