The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action brought by the Trustee to recover the sum of $1,277.65 with interest from April 16, 1937, which sum was the balance on deposit in the East New York Savings Bank in an account in the names of Murry E. Cohen and Bert H. Cohen, payable to either, or survivor of them.
The bankrupt, Bert Collins, also known as Bert H. Cohen, filed a Voluntary Petition in Bankruptcy in this Court, on April 15, 1937, and on the same day was duly adjudicated a bankrupt.
The Other individual defendant, Murry E. Cohen, is the brother of the bankrupt.
From the evidence, it appears, that on or about March 4, 1931, the individual defendant, Murry E. Cohen, opened the bank account in question, with an initial deposit of $10.
At that time, Murry E. Cohen, was earning from five to six thousand dollars a year, and his earnings increased in the succeeding years. He had individual savings accounts in the East New York Savings Bank, Jamaica Savings Bank and a checking account in the National City Bank, under the trade name of Atlantic Advertising Company, under which title he conducted an advertising business. He has been in the employ of the Novocol Chemical Company for the past fourteen years.
The bankrupt, Bert Collins, also known as Bert H. Cohen, was in the employ of the Nevins Bus Lines, earning $35 a week, and had no other income.
The individual defendants both testified that the bank account in question was opened as a "joint account" in order to establish a fund, available to the bankrupt to draw funds for an emergency need of their parents, with whom both of them lived, in the event that Murry E. Cohen was out of the City. Such emergency never arose. The bankrupt did not deposit any monies in the account, nor did he withdraw any money therefrom.
Ninety-six deposit slips were made out, and ninety-six deposits had been made, and nine withdrawal slips were made out, and nine withdrawals were made, of funds, from the said account. Each and all of the ninety-six deposit slips, and the nine withdrawal slips, are in the handwriting of the defendant, Murry E. Cohen. No deposit slips, and no withdrawal slips, bear the signature of the bankrupt.
The deposits were made between March 4, 1931, and March 9, 1938, the latter date being subsequent to the filing of the Petition in Bankruptcy.
The bank-book was, at all times, in the possession of the defendant, Murry E. Cohen. He informed the bankrupt, that in the event of necessity, the book could be found in his desk at his office at the Novocol Chemical Company.
The bankrupt, however, never had occasion to use the bank-book, or account, and therefore, never had it, even for a moment, in his possession.
In the period of eight years that have succeeded the opening of the account, the original purpose for its opening was lost sight of, and the defendant, Murry E. Cohen, used the account for his personal purposes, not thinking that his brother, the bankrupt, had access to the account.
Every cent which was deposited in the account was the money of the defendant, Murry E. Cohen, and every ...