26 N.Y.S. 764 | New York City Court | 1893
In the complaint the plaintiffs allege that Catherine Hackett died on May 15, 1891, and that, at the time of her death, she was the owner of five United States four and one-lialf per cent bonds, amounting to §3,600.. Plaintiffs further allege that they are now entitled to immediate possession of said bonds, and, on information and belief, set forth that the defendant wrongfully took them into her possession and refuses to deliver them to plaintiffs, though demand has been duly made. The prayer for relief is in the usual form of an action of replevin. The defendant, in the answer, admits the death of Catherine Hackett, and denies the probate of the will, or that the plaintiffs have duly qualified. She denies that at the time of her death the said Catherine Hackett was the owner of the bonds, or that the defendant took or detains them from the plaintiffs, and further sets up that the bonds were her own property. On the trial testi
The learned trial judge charged the jury that the burden of proof was on the defendant to establish that her possession of the bonds was lawful and just. We are of opinion that the charge as given was erroneous, and that the burden of proof on the whole case was on the plaintiffs to establish their right of possession. A presumption of law can be drawn by the court, while a presumption of fact can only be made by the jury, and it frequently happens in opinions that the one may be confounded with the other, and, in the discussion of cases,, the term burden of proof is used when the writer intended • simply to say presumption of fact; and it is not surprising that a trial judge, in the hurry of business, is sometimes misled by an authority which he literally follows, while, on a careful examination afterwards, it appears that the judge who
There is no presumption of law in favor of a gift (Grey v. Grey, 47 N. Y. 552), and it is error to charge a jury that there is a presumption of law against a gift donaiño causa mortis. Lewis v. Merritt, 113 N. Y. 386; Devlin v. Greenwich Savings Bank, 125 id. 756. In this case there was proof that Mrs. Hackett had possession of the bonds about a year before her decease, 'and there was also proof that the defendant had possession of the bonds prior to her death. Possession of personal property is evidence of ownership, and the possession by defendant was as strong evidence of ownership by her as the possession by Mrs. Hackett that she owned the property at the time of her death.
The plaintiffs, by their recovery in this action, establish that the defendant was guilty of fraud, and perhaps of grand larceny. In a civil action where a party is charged with the commission of a crime or of fraud there is a presumption of innocence. Shultz v. Hoagland, 85 N. Y. 465; Blatz v. Rohrbach, 116 id. 450; Starr and Others v. Peck, 1 Hill, 270 ; Slocovich v. Orient Ins. Co., 108 N. Y. 56, 66; Morris v. Talcott, 96 id. 100, 107. The defendant was presumed to be innocent, and it was incumbent on the plaintiffs to establish, by a fair preponderance of evidence, that the bonds wére wrongfully taken and detained by the defendant, as alleged in the complaint. Griffin v. L. I. R. R. Co., 101 N. Y. 348, 354.
Van Wyck, J., concurs.
Judgment and order reversed and new trial granted, with costs to the appellant to abide event.