Scheps v. Bowery Savings Bank

90 N.Y.S. 26 | N.Y. App. Div. | 1904

Hirschberg, P. J.:

The issue between the parties to this appeal relates to the title to-a savings bank boók and the money represented by it on deposit-with the defendant The Bowery Savings Bank. The appellant. claimed under an alleged gift causa mortis, and proved that the book was delivered to her by the deceased on February 7, 1903, She undoubtedly retained possession of it until after the death- of the deceased, which occurred in a hospital on March 26, 1903. The respondent claims as next of kin of the deceased. The question whether a. gift had been made to the appellant was submitted to the jury by the learned trial justice and answered in the negative, and the finding of the jury was adopted by the court. The main evidence, however, offered by the respondent in order to rebut the prima facie case established by the appellant, consisted of declarations made by the deceased after he had delivered possession of the boob, tending to prove that he still claimed to own it, and that he had only parted with the possession in order to procure cheaper board at the hospital than he would have been able to do with the book in his possession. The reception of this evidence was error, as it is well settled that the declarations of a grantor of real estate or a donor or assignor of personal property, made after a deed, gift or sale, are incompetent and ineffective for the purpose of defeating the claim or title of the grantee, donee of assignee. (Brown v. Mailler, 12 N. Y. 118; Van Gelder v. Van Gelder, 81 id. 625; Williams v. Williams, 142 id. 156; Lent v. Shear, 160 id. 462; Wangner v. Grimm, 169 id. 421; Van Arsdale v. Buck, 82 App. Div.. 383.)

Even assuming that the verdict of the jury is to be regarded as advisory and not controlling, we cannot but believe that the finding of the learned trial court was influenced by the improper evidence, and that had it been disregarded a preponderance of the competent evidence might have been found to be in the appellant’s favor.

The judgment and order should be reversed.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.