107 Misc. 635 | N.Y. App. Term. | 1919
We see no error in so much of the judgment as awards $500 to the plaintiff on his cause of action, but we think the defendant’s counterclaim for $400 loaned to the plaintiff should have been allowed. The parties had been dealing with each other for some time, the plaintiff buying vegetables for the defendant under an agreement whose terms are not essential to an understanding of the question involved in a consideration of the counterclaim. The plaintiff admits that he borrowed the $400 from the defendant some time in January, 1916, but claims that the debt was subsequently orally forgiven. No note, receipt or other physical evidence of the loan was, either at the time of its making, or later, given to the defendant.
The defendant does not directly deny the forgiveness. Assuming the fact of the matter to be as plaintiff contends, it seems clear that the plaintiff wholly failed to establish a defense to the counterclaim. From the earliest times it has been held that no gift is valid unless its subject-matter is so delivered to the donee as to place the property given under the donee’s dominion and control. Cochrane v. Moore, 59 L. J. Q. B. 377. In the case of chattels, or of debts evidenced by a writing, symbolical deliveries of various kinds have frequently been held good. But no mere words alone, except where the donee at the time is in possession of tangible property, or of tangible evidence of a right to incorporeal property, suffice to constitute delivery. Cochrane v. Moore, supra; Gray v. Barton, 55 N. Y. 68; Carpenter v. Soule, 88 id. 251; Beaver v. Beaver, 117 id. 421; McKenzie v. Harrison, 120 id. 260; Matter of Van Alstyne, 207 id. 308; Van Cleef v. Maxfield, 103 Misc. Rep. 448. The Van Cleef case is the only case decided in this country, so far as we could find, where the subject-matter of the intended gift was an unevidenced debt, and it was held that there was no gift, although there was a clear intent to make the gift by forgiving the debt. There, as here, had the intending donor given the intended donee a receipt for the debt, that would have been a sufficient delivery.
It seems to be beyond argument that no merely oral expression of an intention to forgive an unevidenced debt can effectuate the intending donor’s purpose. It follows, therefore, that the counterclaim should have been allowed.
Judgment modified by deducting therefrom the sum of $400 with interest from January 31, 1916, and, as so modified, affirmed, with $25 costs to the appellant in this court and with appropriate costs to the plaintiff in the court below.
Cut and Bijur, JJ., concur.
Judgment modified and, as so modified, affirmed, with twenty-five dollars costs to appellant.