79 N.Y.S. 49 | N.Y. App. Div. | 1902
The action was brought to recover from a savings bank a sum of money deposited with the defendant by one John Sweeny. The complaint alleges that “ on the 31st day of October, 1891, in consideration of certain monies given by plaintiff to said John Sweeny and of his then indebtedness to and friendship for plaintiff, he, said John Sweeny, made to plaintiff a gift of the said money then on deposit, being a portion of the money so deposited by him in said bank, and at the same time delivered to plaintiff the said bank or pass book, No. 272,115, as evidence of said gift, which gift plaintiff accepted, and which book plaintiff has ever since continuously held and kept, and still has, holds and keeps as evidence of the gift and money aforesaid; ” and the complaint demands judgment against the defendant for the balance due on said deposit.
Upon the trial the plaintiff was called as witness and testified that Sweeny, the depositor, obtained from the government a pension and received at that time a sum of money for arrears of pension which he deposited in two savings banks, one of which was the defendant; that Sweeny came to the plaintiff on the 31st day of October, 1891, borrowed ten dollars, went out with the plaintiff’s son and one Clark to get a drink and came back to the plaintiff and said: “ ‘ That money is a curse to me; I never can keep sober as long as I have it; you keep it. * * * Take it and keep it.’ * * * He said the time he gave me that book the money in it was mine, ‘ Yours to keep.’ I took the books and put them in a drawer of my desk. I says, £ Thank you, Doctor.’ ” He further testified to a previous conversation with Sweeny who said that “if anything ever happened to him he wanted me to have the money; that I had always been his friend, and he had no one else to give it to.” Upon cross-examination the plaintiff testified that the con versation between himself and Sweeny was as follows : “He came in my office and says: £ Here, boss, here is my two bank books; as
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.