9 Bosw. 290 | The Superior Court of New York City | 1862
The finding of the Referee that neither E. R. Geary, nor W. L. Geary was ever in possession of any of the vouchers, securities or moneys deposited by their father, with the defendants, appears to be fully sustained by the evidence. All the dealings with respect to these funds were with the plaintiff. Ho correspondence or other evidence showed any notice whatever to the plaintiff’s children of the deposit in their favor, nor does it appear that their right to the fund, was admitted or recognized by the defendants at any time during the series of years of their dealings with the plaintiff. The instructions of the plaintiff to transfer the accounts to the names of his children were followed by the defendants and were recognized by them as the directions of one haying authority to give them. The defendants never took any steps to apprize the plaintiff’s children of the transfer of these funds to their account, but constantly recognized and admitted, by their acts and correspondence, the absolute dominion and authority of the plaintiff over them. It is not necessary to inquire into the motive of the plaintiff in directing the transfer of the securities, &c., to his
The next inquiry is, was this a gift to the plaintiff’s children, either in presentí or in futuro. That the plaintiff intended ultimately to make his children the objects of his bounty, is perhaps inferable from the transactions in the case. It is difficult to discern any other motive for the change in the accounts from himself to his children; but that he designed, at the time of the transfer, to donate to his sons the funds and securities, no where appears. In order to constitute it a valid gift, delivery was essential. A mere promise or declaration of an intention to give, however clear and positive, wuuld not be enough. The intention must be consummated and carried into effect by those acts which the law requires to divest the donor of, and invest the donees with, the right of property. The donor must part not only with the possession of, but with the dominion over, the property. (Gilchrist v. Stevenson, 9 Barb., 9, 13; Huntington v. Gilmore, 14 Id., 243, 246; Harris v. Clark, 3 Comst., 113; Van Deusen v. Rowley, 4 Seld., 358.) And if he retains authority or dominion over the subject of the gift, or there remains in him a locus penitentice, there is not a perfect and legal donation. (Hitch v. Davis, 3 Md. Chy. Decis., 266.) That the plaintiff did
The only remaining question I deem it necessary to examine, is the defense of accord and satisfaction set up by the defendants. On the 18th of September, 1855, the defendants, by F. M. Haight, wrote the plaintiff that they had compromised certain claims set apart on the failure of the defendants’ house, as a security for the debt due the plaintiff, at $12,000, cash $6,000, and a note for $6,000, at three mouths, and then say, “ the amount must be received in full of' your debt against Page, Bacon & Co. You will please send me a proper discharge from C. R. and W. L. Geary of the debt due them from Page, Bacon & Co.” To this letter the plaintiff, under date of Nov. 16,1855, wrote
The Eeferee having found an amount due the plaintiff upon an examination of the accounts between the parties, and it not being claimed that such finding is against the weight of evidence, I can see no reason why we should disturb his report, charging the defendants with the amount in this action, and directing judgment therefor.
I am of opinion that the judgment appealed from should be affirmed with costs.
Besides the accord, the only question is, if, on the evidence in this case, the plaintiff’s children'could recover against the defendants. It is not a case of novation whereby, in consideration of the defendants promising