180 A.D. 77 | N.Y. App. Div. | 1917
The defendant Kane, as executor of Caroline A. Van Duzer, deceased, a sister of the respondent, appeals from a judgment in favor of the plaintiff, sustaining the plaintiff's contention of a gift inter vivos of a deposit in the defendant bank, made to him by his sister shortly prior to her decease.
The alleged gift was established by the evidence of plaintiff’s wife, corroborated by the evidence of his daughter, and a nurse of the deceased who was wholly disinterested. The sole question presented to the court was one of fact, and the disposition of the case should not be disturbed unless, as contended, the exceptions present reversible error. The plaintiff was permitted to testify, over the appellant’s objection and exception, under the provisions of section 829 of the Code of Civil Procedure, that when he went to the house occupied by his sister on the night that he alleges she gave him her bank book and the money represented by the deposits, he did not have the bank book in his possession, and that when he left the house he did have it. I think this evidence was incompetent and inadmissible, if the fact to which plaintiff testified was relied upon or necessary to establish the gift or a delivery of the bank book, as the presumption flowing
The judgment must, therefore, be affirmed, with costs payable from the estate.
Mills, Putnam and Blackmar, JJ., concurred; Jenks, P. J., not voting.
Judgment affirmed, with costs payable from the estate.