#### Mary Walsh, Respondent, *against*The Bowery Savings Bank, Appellant.

(Decided December 2d, 1889.)

In an action to recover a deposit in a savings bank, under an allegation of a gift to plaintiff, proof is admissible of a gift *causa mortis.*

The gift of money on deposit in a savings bank, with a delivery of the bank-book to enable the donee to get the money, made by one in expectation of impending death, who died two days thereafter, is a good gift *causa mortis.*

A savings bank which, after notice from a person that he claims by gift a deposit made by another, pays the deposit to the latter’s administrator, cannot set up such payment in defense of an action by the donee.

_ Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

The action was brought to recover a deposit in defendant savings bank made by one Mary Duffy, since deceased. The complaint, after alleging the deposit and the balance due thereon, set out “ that on or about the 9th day of February, 1883, said Mary Duffy gave and transferred said sum and the interest due thereon, and all her right and interest therein, to this plaintiff, accompanying said gift and transfer by the delivery to this plaintiff of the said pass-book.” The complaint also alleged a demand and refusal.

At the trial the complaint was amended, by leave of the court, to confirm to the proofs, by alleging a gift *causa mortis.*The jury found a verdict for plaintiff, and a motion by defendant for a new trial was denied, and judgment for plaintiff entered on the verdict. From the judgment and the order denying the motion for a new trial, defendant appealed to the General Term of the City Court, which affirmed the judg*404ment and order, and from this decision defendant appealed to this court.

*Carlisle*Norwood, *Jr.,*for appellant.

*William H.*Regan, for respondent.

Van Hoesen, J.

Under the complaint, as it was originally drawn, it was proper to admit proof that the plaintiff acquired title by a *donatio causa mortis.*An amendment was not at all necessary, though the counsel for the defendant succeeded in frightening, the plaintiff’s attorney into malting a motion for leave to amend. Such leave was granted, but the defendant was not thereby prejudiced. A good *donatio causa mortis*was proved. The money on deposit was given to the plaintiff, and the banlt-boolt was actually delivered to her by the donor to enable her to get the money. The donor was in expectation of impending death, and she died, in a day or two afterwards, of the disease whose fatal issue she anticipated. A good *donatio causa mortis may*be made by' the delivery of the donor’s bank-book to the donee, where the circumstances exist that must surround a gift of that description (Am. & Eng. Encyclopædia of Law, pp. 1845, 1326 *et seq).*

As to the validity of the gift in this case there cannot be a doubt, but a question is made as to the right of the plaintiff to. recover the money from the bank. The money was actually drawn from the bank by the administrator of the donor, and, as the gift was valid, the plaintiff might recover judgment against the administrator in an action for money had and received to her use. Whether such a judgment would be of any value in this case, we have no means of knowing., . In Massachusetts it was decided, in the case of *Pierce*v. *Boston Five Cent Savings Bank*(129 Mass. 425), that even without the consent of the administrator, the donee might maintain an action for the money in the administrator’s name. Such an action could not be maintained in this case, because the administrator has already collected the money from the bank. The difficulty in which the bank now finds *405itself is entirely of its own creation, for after having been notified that the plaintiff claimed the money as hers by gift, it nevertheless, either carelessly or wilfully, disregarded the notice, and paid the money to the administrator. The payment to the administrator after notice of the plaintiff’s rights leaves the bank in no position to call on the plaintiff to look to the administrator for the money. By thus paying the administrator, the bank stepped into his shoes, and cannot defeat the plaintiff’s claim unless the administrator could successfully resist it.

The case was rightly decided, and judgment should be affirmed, with costs.

Larremore, Ch. J., and J. F. Daly, J., concurred.

Judgment affirmed, with costs.

Defendant made a motion at the January General Term, 1890, for leave to appeal’to the Court of Appeals from the judgment entered 911 the foregoing decision, upon which the following opinion was rendered, February 3d, 1890.

Bookstaver, J.

The ground on which the appellant now seeks to go to thé Court of Appeals, to wit, to have the question of law with reference to the contractual force of the rules of the appellant limiting and defining the relations of the defendant to its depositors definitely settled, is not sufficient t¿ warrant the granting of the motion and the continuance of this litigation at the expense of the plaintiff, who had given the bank ample notice of the plaintiff’s claim before it paid the money to the depositor’s administrator. The dilemma in which it now finds itself is one of its own creation. When the administrator made his demand it could have refused payment to him on the ground of plaintiff’s claim, and then waited until one or the other commenced an action to recover the amount, when it could have brought in the other claimant or notified him or her of the action and required the one not suing to defend, instead of which it took the re*406sponsibility of determining to which it would pay, and it •must abide by the result.

The motion will therefore be denied* with $10 costs.

Bischoff, J., concurred.

Motion denied, with costs.