#### James Foley, Appellant, *v.*The New York Savings Bank, Respondent.

First Department,

July 10, 1913.

Decedent’s estate—action against bank to recover upon draft executed by testator-—equitable assignment — gift causa mortis — evidence of delivery of gift — testimony of plaintiff as to what testator told him.

In an action upon a draft it appeared that M., who had been acquainted with plaintiff for some years, and who lived at his house during the year prior to his death, called plaintiff to his bedside a few days before his death and said: “ I want you to go and get that man to come here and fix up this money matter; I want you to have it. **** * If I live, well and good, and if I do not, you can have it and see after me and bury me decently and have a Mass in Church and put a stone over my head *869* * * and give the money to charity and get Masses for my soul and give it to any one you like.” To this the plantiff replied: “ I will do that, and I will give you my hand and word that I will never go back on you.” The “man” referred to by the testator was an employee in defendant bank. Plaintiff on the same day called at the bank and explained what the testator wished to do and thereafter a representative of the bank called upon the testator and after obtaining satisfactory answers to questions prepared a draft, payable to the plaintiff, transferring the balance of testator’s account, which was signed and acknowledged by M. Attached to the acknowledgment was a physician’s certificate that M. was of sound and disposing mind and capable of understanding the transaction, but physically unable to write his name. The draft was delivered to the plaintiff by the representative of the bank, but it did not appear how the plaintiff secured possession of the bank book which, together with the draft, he presented to the defendant and demanded payment both prior to and after M.’s death, which payment was refused.

*Held,*that a recovery in favor of the plaintiff may be sustained either upon the ground that the draft operated as an equitable assignment or that the delivery of the check and the book was evidence of a valid gift *causa mortis.*

Where evidence of possession by the donee and of the donor’s intent to give is clear, evidence that the donee received actual delivery of the gift from the hands of the donor is unnecessary.

Testimony of plaintiff as to what the testator told him was properly admitted.

Appeal by the plaintiff, James Foley, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of February, 1913, reversing a judgment of the City Court of the City of New York in plaintiff’s favor.

*Frederick W. Hamberg,*for the appellant.

*Edgar L. Ryder,*for the respondent.

Hotchkiss, J.:

The facts appearing at the trial were as follows: Plaintiff and one Murphy had been acquaintances for fourteen years previous to the latter’s death. Murphy died on May 17, 1912, at plaintiff’s house, where he had lived for eleven months previous to his death. On May 12, 1912, Murphy, apparently being then ill in bed, called plaintiff to his side and said: “I want you to go and get that man to come here and fix up this money matter; I want you to have it. * * * If I live, well *870and good, and if I do not, you can have it and see after me and bury me decently and have a Mass in Church and put a stone over my head * * * and give the money to charity and get Masses for my soul and give it to any one you like.” To this plaintiff replied: “ I will do that, and I will give you my hand and word that I will never go back on you.” The “man” referred to by Murphy was Blakelock, an employee in defendant’s bank and a witness in its behalf, with whom both Murphy and plaintiff were acquainted. Plaintiff on the same day called at defendant’s banking house and saw Pentz, defendant’s secretary, to whom he (plaintiff) explained what Murphy wanted to do. Pentz promised to send a man to see Murphy and further said, as he testified: “ If Mr. Murphy answers the questions satisfactorily, it will be all right.” On the following day, the thirteenth, Blakelock called to see Murphy. Sworn as a witness for defendant, Blakelock testified that he asked Murphy numerous customary questions as provided by defendant’s by-laws, and, among other things, “I asked him who he wanted The New York Savings Bank to pay the money to, and he indicated Mr. Foley.” It seems, however, that Murphy’s condition was such that Blakelock was unable to get from him satisfactory answers to all his questions. Blakelock returned on the fourteenth and Murphy answered satisfactorily all questions then asked. On the fifteenth Blakelock again called upon Murphy, asked further questions, and apparently received satisfactory answers.

When Blakelock saw Murphy on May fourteenth he prepared the following draft, which was signed by Murphy and acknowledged by him before Blakelock as notary:

> “$1529.85 New York, *May*14, 1912.

> “ The New York Savings Bank,

> “ Pay to James Foley or Bearer, Balance of account-

> Dollars, on account of Bank Book No. 202670.

> “Present Residence: 207 W 141

> his

> “ TIMOTHY X MURPHY ”

> mark

Attached to the draft is a further certificate, in form one of acknowledgment by Murphy, dated May fourteenth, and purporting to be signed by one Tenner, a physician, which in *871addition to its certificate of acknowledgment, has the following: “ I also certify that the said Timothy Murphy is of sound and disposing mind and capable of understanding the nature of said transactions, but is physically unable to write his name.”

The draft was delivered by Blakelock to plaintiff, presumably at the time it was executed or immediately thereafter. Just when or how plaintiff got possession of the bank book does not appear, but that he had it in his possession and that on May fifteenth he presented it and the draft at the bank, and demanded payment of the latter, is testified to both by plaintiff himself and by defendant’s 'teller. That there is no affirmative evidence to show that Murphy personally delivered the bank book to plaintiff, I do not regard as important. Where the evidence of possession by the donee and of the donor’s intent to give, is as clear as it is in this case, evidence that the donee received actual delivery of the gift from the hands of the donor is unnecessary.

When the book and draft were so presented to defendant a bookkeeper of defendant balanced the book, a receipt for the amount was made out and signed by plaintiff, the book and draft were stamped “Closed by payment,” and plaintiff was directed to go to the proper “window” to receive the money. After waiting for some time plaintiff was told that payment would not be made. On May sixteenth plaintiff again demanded payment, which was refused. A similar demand was made with the same result on the eighteenth, the day following Murphy’s death, at which time defendant refused to return to plaintiff the book and draft, which it had retained from the time it had originally received them on May fifteenth.

Upon these facts the transaction may be sustained both on the ground that the check operated as an equitable assignment of the fund, and also upon the ground that delivery of the check *and*the book was evidence of a valid gift *causa mortis,*of the moneys standing to Murphy’s credit at the bank. Upon the first proposition it will be noticed that the draft was not against the general credit of the drawer with the drawee, but was drawn on a specific and identified fund and that it was for the whole of such, fund and notice of the draft was given to *872the bank before the drawer’s death. I can conceive of nothing further necessary, under any circumstances, to effect an assignment in equity. *(O’Connor*v. *Mechanics’ Bank,*124 N. Y. 324, 332.) That there was a valid gift *McGuire*v. *Murphy*(107 App. Div. 104) is sufficient authority.

I am also of the opinion that the learned Appellate Term was in error in holding that the testimony of plaintiff as to what Murphy told him was improperly admitted. *(Severn*v. *Nat. State Bank of Troy,*18 Hun, 228; *Lyon*v. *Whittaker,*77 id. 107.)

The determination of the Appellate Term should be reversed, with costs in this court and in the Appellate Term, and the judgment of the City Court of the City of Hew York affirmed.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Determination reversed, with costs in this court and in the Appellate Term, and judgment of City Court affirmed. Order to be settled on notice.