and Fairbanks are two separate post offices now, that is of no consequence; for the change in the name of the post office should have been cleared up by the affidavits, and, even if Cleary City and Fairbanks were separate post office addresses at that time, still that would not have justified dispensing with service by mail, but would have required that the papers be mailed to the plaintiff at each post office, for it would be apparent that a mistake had been made as to one or the other.

No explanation is offered as to why the plaintiff did not seek the address of her husband from the party through whom she had previously forwarded mail to him, or from the party who in June, 1906, gave her his address. It was merely shown that a letter written by the plaintiff's attorney to the postmaster at Cleary City and Fairbanks, Alaska, asking for the address of the defendant Murphy, was unanswered, and that an answer was received to a similar letter written by him to the postmaster at Vancouver, British Columbia, to the effect that the postmaster could not give the information. These affidavits afforded no evidence of a change of address by the defendant Murphy. It is well known that postmasters are not at liberty to disclose the addresses of people unless special circumstances are presented; and, as it does not appear that any special circumstances were presented which would justify the postmaster in disclosing the information, it is of no importance that in the one instance the letter was not answered, and in the other that an answer was received which may well have been intended to mean merely that the postmaster was not at liberty to divulge information on the subject.

Assuming, therefore, without deciding the question, that in passing upon the sufficiency of the affidavits upon which the application for publication was made, on a review of the trial in the action, we are to be guided by the principle that would be controlling in a collateral attack upon the judgment, still I am of the opinion that the affidavits showed an address of the defendant Murphy where it was probable that matter duly mailed to him would be received by him, and that, therefore, the service by mail could not properly, and should not, have been dispensed with.

It follows that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except HOUGHTON, J., who dissents.

HOUGHTON, J. (dissenting). I think this action is properly brought, and that the order of publication against Patrick Murphy properly dispensed with mailing of notice to him. It is undisputed that at the time the plaintiff was married to the defendant Patrick she had on deposit with the defendant savings bank $1,263 of the money now on deposit, and that she herself made all the deposits from her own money thereafter. It stands, therefore, upon the undisputed proof, that notwithstanding the form of the deposit she is the owner of all the money, and that she at all times has been in sole possession of the bank book. The deposit being in the name of Patrick and Mary Murphy, it was unimportant that on the bank signature book an official had written it was not to be drawn except upon the signatures

of both. The form of the deposit would indicate on its face that both must draw, and that one could not do it alone. Notwithstanding this fact, it appearing that all the money belonged to the plaintiff, she has the right to it as against a formal joint depositor.

The recent case of Kelly v. Beers, 194 N. Y. 49, 86 N. E. 980, is express authority for the proposition that the actual owner of money on deposit in a savings bank, notwithstanding the particular form in which the deposit is made, is entitled to the money on proving ownership; and also is express authority for the proposition that an equitable action may be maintained to establish ownership. Such is the form of the present action, and the only persons interested in the deposit are parties thereto. I do not understand the defendant bank to claim that such an action is not maintainable. Such a proposition arose only in this court. That it is maintainable seems to me too plain for discussion. The only question which the bank does urge is whether the defendant Patrick could be brought into court by substituted service, and, if he could, whether the provision of the order of publication dispensing with mailing of notice was justified. I think an order could issue, and that the dispensing with mailing was justified, and that the judgment should be affirmed.

Section 438, subd. 5, of the Code of Civil Procedure, provides that a defendant may be brought into court by substituted service, "where the complaint demands judgment that the defendant be excluded from a vested or contingent interest or lien upon specific real or personal property within the state, or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited, or otherwise affecting the title to such property." While technically the relation between a bank and its depositor is that of debtor and creditor, in a broader sense the bank holds the money for the depositor. Especially is this true of a savings bank. I think a deposit of a specific amount of money in a bank can fairly be said to be a fund the title to which, or an interest in which, can be the subject of litigation and adjudication. If so, it comes within the provisions of the Code permitting substituted service upon a defendant who is sought to be excluded therefrom or his right therein defined or limited.

Orders of publication were held improper in Bryan v. University Pub. Co., 112 N. Y. 382, 19 N. E. 825, 2 L. R. A. 638, and in Von Hesse v. Mackaye, 55 Hun, 365, 8 N. Y. Supp. 894, affirmed 121 N. Y. 694, 24 N. E. 1099, on the ground that the personal property in controversy was not within this state. In Chesley v. Morton, 9 App. Div. 461, 41 N. Y. Supp. 463, the order was upheld on the ground that the action partook of the nature of one in rem.

The plaintiff also asks that it be adjudged that she is the sole and absolute owner of the deposit, and that the claim of the defendant Patrick thereto, if any, be determined. It is true that she also asks that, if it be determined that she be the sole owner and that Patrick has no interest therein, it be adjudged that the bank pay the same to her. It seems to me that it is an action to determine a claim to personal property situated within the state. It would be a very monstrous failure of justice, not only in the present case, but in many similar

judged that he was the owner, where the joint depositor had disappeared or chanced to be a nonresident upon whom substituted service could not be made. If the action is one, as it seems to me it is, in which an order of publication against a nonresident defendant was proper, then I think the judge granting the order of publication was entirely right in dispensing with mailing.

Section 440 of the Code prescribes that, if the judge granting the order be satisfied from the affidavits that the plaintiff cannot with reasonable diligence ascertain a place or places where the defendant would probably receive matter transmitted through the post office, he may dispense with the deposit of any papers therein. The affidavits show that the defendant Patrick disappeared in 1898; that plaintiff, although she heard from him or three or four occasions, had not heard about him since June, 1906, when some third person, at Vancouver, British Columbia, wrote her that her husband Patrick at that time was at Cleary City, Fairbanks, Alaska. The order of publication was granted in May, 1908. The affidavits show that every reasonable effort was made and all possible inquiries instituted to ascertain whether or not service could be made upon him in this state, and service was found impossible. Thereupon one of plaintiff's attorneys wrote to the postmaster at Cleary City and at Vancouver, British Columbia, making inquiries concerning Patrick. The postmaster at Vancouver replied that he could not give the information asked for, and the postmaster at Cleary City did not reply at all. His sister had not heard from him, and knew nothing of him, except some four years prior she had received a letter from him from some place in Alaska, at what place she did not know, and she believed that he was in the region known as "the Klondike" in British America or Alaska. Upon this proof the judge granting the order of publication was entirely warranted in coming to the conclusion that it would be a futile thing to require mailing of a notice.

In Kennedy v. Lamb, 182 N. Y. 228, 74 N. E. 834, 108 Am. St. Rep. 800, the nature of the evidence required to be presented to the judge granting an order of publication is commented upon, and it is held that any evidence having a legal tendency to show compliance with the statute, even if inconclusive, would warrant the exercise of judgment, and thus confer jurisdiction to make the order, and, even if the judge reached a wrong conclusion upon the facts presented, so that his order would be set aside on direct attack by motion to vacate, still, if he had some legal evidence to act upon, the order would be protected from collateral attack after the entry of judgment. To the same effect is Evans v. Weinstein, 124 App. Div. 316, 108 N. Y. Supp.

753.

The question here under consideration is, not whether the order would have been set aside on a direct attack, but whether the court obtained any jurisdiction whatever to make it, dispensing with a service by mail. Facts insufficient to sustain an order on a direct attack may be entirely sufficient to uphold the jurisdiction of the judge making it. Belmont v. Cornen, 82 N. Y. 256; Donnelly v. West, 66 How. Prac. 428; Walker v. Reiff, 13 Wkly. Dig. 331. I have very grave doubts whether, if the judge had jurisdiction to make the order of

publication itself, a wrong direction dispensing with mailing would make it void. In Spaus v. Schaffner (Sup.) 2 N. Y. Supp. 189, Mr. Justice Ingraham held that an order of publication which directed mailing to the defendant addressed to him at New York City did not vitiate the order. If a direction in an order of publication against a nonresident to mail the notice to him to a place situated within the state does not vitiate the order, I cannot see how dispensing with mailing could have that effect.

Confessedly sufficient facts were presented to the judge granting the order of publication in the present case to confer jurisdiction upon him to make an order of publication. The only complaint respecting the order is that it dispensed with mailing. Having jurisdiction, and having some facts upon which he could properly adjudge that it was improbable that the defendant would receive notice by mail, the order cannot be said to be void.

The defendant bank does not claim to be the owner of the money. All it desires is that it be protected against payment a second time. I think the judgment gives such protection, and I therefore vote to affirm it.

SHERRY v. PROAL.

(Supreme Court, Appellate Division, First Department. April 16, 1909.) 1. LANDLORD AND TENANT (§ 38*)-PAROL LEASE.

Where a landlord and tenant entered into a parol agreement for a new lease, and the only matters definitely settled were the subject, rent, and term, and there was no agreement when and how the rent should be paid, or what covenants and conditions should be incorporated, but the landlord directed the tenant to sign a lease already sent to him by the landlord, merely changing the term contained therein, the agreement is not a complete lease in præsenti, and there is no presumption, arising from the fact that the tenant holds a written lease of the premises, that the new lease was to be in the same form.

[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 38.*] 2. LANDLORD AND TENANT (§ 23*)-VALIDITY OF PAROL LEASE.

A lease for a term not within the statute of frauds can lawfully be created, where the parties have orally agreed upon all the terms, and nothing is left to be done except to put them in writing, although the written lease is never executed.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 60; Dec. Dig. § 23.*]

3. CONTRACTS (§ 32*)—REQUISITES-EVIDENCE OF AGREEMENT.

That parties to an alleged oral agreement intend to have a formal written agreement executed is evidence that the oral agreement is not intended to be binding.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 159; Dec. Dig. § 32.*]

Clarke, J., dissenting.

Appeal from Trial Term, New York County.

Action by Louis Sherry against Arthur B. Proal. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 125 App. Div. 508, 109 N. Y. Supp. 1008.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

Martin W. Littleton, for appellant.
Franklin Bien, for respondent.

SCOTT, J. The plaintiff sues and has recovered a judgment for one half year's rent, from October 1, 1906, of an apartment in an apartment hotel. Plaintiff had occupied the apartment for a number of years under a written lease, which had been renewed from year to year by written renewals; the last renewal expiring on October 1, 1906. In March of that year plaintiff and defendant had a conversation respecting the renewal of the lease, and after much discussion a tentative agreement was made for a new lease for five years at an increased rental. This lease was never executed, and plaintiff makes no claim under it. Plaintiff testifies that he prepared and signed duplicate copies of such a lease, and directed his bookkeeper to send them to defendant for signature. There is no evidence that they were ever delivered to defendant, or at his apartment or his office, and he denies that he ever received them. Soon after this conversation both parties went abroad, leaving the matter of a new lease undetermined. Defendant returned to New York in July, and then took up the matter of a new lease with one Flauraud, the manager for plaintiff who was still abroad.

The question at issue between the parties is a very narrow one, and arises out of this conversation between Flauraud and defendant; the former testifying that a definite and precise agreement was then made for a new lease for one year, and the latter testifying that he offered to take a lease for a year, but that Flauraud declared that he had no authority to make such a lease. Although the parties to this conversation differ as to its ultimate outcome, there is no reason to believe that either is consciously and willfully testifying falsely, but rather that they honestly differ in their recollections as to what was finally said. A jury has twice decided to accept Flauraud's statement, and we shall undertake the consideration of the case from the standpoint of the accuracy of his recollection. His statement of the conversation is as follows:

"Mr. Proal came in, and after passing the time of day, and asking about how he was, and so on, I asked Mr. Proal if he would send me the lease that Mr. Sherry had sent him for signature; that his lease had been signed by Mr. Sherry. I said for Mr. Proal to return the lease that Mr. Sherry had signed, to me, with his signature attached, in order to complete the leasing of the apartment. Mr. Proal said he had not received them. I told him that, if he looked in his apartment or at his office down town, he probably would find them. After a little more conversation on the matter, he said: 'Now, Flauraud, I don't like that lease. I want you to change that lease for me.' 'Well,' I said, 'what do you want me to change?' 'Well,' he said, 'I want you to make my lease the same as the old lease was; that is, I want the five years with the option of one at a time, at the same rental as the first year—that is, $14,000.' I said to Mr. Proal: 'Don't ask me to do a thing of that kind. You talked that matter over with Mr. Sherry, and it has all been settled, and you know Mr. Sherry does not want to give any options at all. Now,' I said, 'I will do anything for you, but I can't do that.' So, after a little while, further talk and conversation, he said: 'Well, give me a one year's lease,' says