#### Timothy Derrick *et al.*Adm’rs, Resp’ts, *v.*Mary Louisa Emmens, Impl’d, App’lt.

*(City Court of Brooklyn, General Term,*

*Filed April 28, 1891.)*

1. Executors and administrators—May maintain action to set aside ASSIGNMENT MADE BY TESTATOR OR INTESTATE.

An administrator stands in the place of his intestate, and may maintain an action to set aside an assignment of a fund in bank made by him on the ground of fraud or undue influence in procuring the same.

2. Trial—Refusal to dismiss:

A denial of a motion to dismiss cannot be claimed to be error calling for *482reversal where the defendant subsequently offered evidence and the case-was tried on its merits.

3. Gift—Undue influence—Burden of proof.

Plaintiff’s intestate, at the time of the execution of an alleged assignment of a fund in bank, was eighty years old and had been in a dying condition for a week, and his mind was weak. *Held,*that the burden of proof was on the party claiming under the assignment to show that there-was no undue influence.

Appeal from judgment of special term adjudging a certain assignment in writing of moneys in the Seamen’s Savings Bank, made by plaintiffs’ intestate, to be a cloud upon plaintiffs’ title thereto.

*William*Sullivan, for resp’ts; *A. J.*Morris, for app’lt.

Clement, Ch. J.

The plaintiffs are the administrators of the-estate of Michael Morriss, who died in this city on October 11„ 1889. The defendant, Mary Louisa' Emmens, had in her possession, at the time of his death, a deposit book in the Seamen’s Bank for Savings, which account was opened by the said Michael Morriss, and on the book was endorsed an assignment to her by Morriss of the balance in the bank, $2,702.59. By the by-laws of the bank, it was provided that drafts could only be paid on the production of the book. The plaintiffs brought this action against Miss Emmens and the bank, and alleged that the assignment was -obtained by undue influence or was a forgery, and asked judgment that the assignment be canceled and that they recover of the bank the balance on deposit. The court at special term found that Morriss mechanically signed the instrument which ,was written on the pass-book, but that he was unconscious of the ¡nature of the act, and rendered judgment in favor of the plaintiffs, .""j.The counsel for the appellant insists that the motion to dismiss 'the case should have been granted. The plaintiffs could not draw jthejjmoney^unlesa they produced the book, which, at the com|mencenaént bf¿the- action, was in the possession of Miss Emmens, They had not seen the assignment, and only knew that she had attempted to draw the money, and had failed. They believed that fany draft which was held by the defendant was a forgery, or was’’obtained by undue influence, and, with such facts as they had, commenced the action. It was disclosed on the trial that Morriss had affixed his signature to an assignment of the fund-An action in equity to cancel the assignment was the proper remedy. Morriss, if he had lived, could have maintained such an action, and the plaintiffs are his personal representatives, and-stand in his place.

The plaintiffs offered no proofs, and rested; and a second motion to dismiss was made, which was denied. If the defendant had not offered testimony thereafter, it might be argued that the denial of the motion would havg been error, but the case was then tried on the merits. Certain admitted facts appeared which shifted the burden of proof in the action to the defendant. Morriss was, at the time of his death, about eighty years of age, and seven days prior to the date when he signed over the deposit had received the sacrament of extreme unction, which is administered to dying *483persons of the Roman Catholic Church, of which he was a member. When he executed the paper his mind was weak, as appears from the testimony of Miss Bmmens and her attorney. He did not recognize the attorney when he went into the room, though he had seen him twenty times before. He was confused, and thought that the attorney wanted him to make a will. On the conceded facts, the burden of proof was on the defendant to show that there was no undue influence. *Green*v. *Roworth,*113 N. Y., 462; 23 N. Y. State Rep., 149, and cases there cited.

We have carefully reviewed the case, and conclude that the evidence fully justifies the finding of fact It appears by the testimony of Dr. Anderson, who was called by the defendant, that he saw Morriss on October 7th, and that he was then without the conveniences of a sick man, though the defendant lived in the same bouse, and though he had given her nearly $4,000 two days before. Morriss was at the point of death for at least a week before the date of the alleged gift, and was incapable of making a gift during that time, except on affirmative proof that there was no undue influence, and that the transaction was fair. The questions involved are purely of fact, and the decision at special term must .stand.

Judgment affirmed, with costs.

Osborne, J., concurs.