#### Stewart Pink, Resp’t, *v.*William S. Church, Adm’r, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 11, 1891.)*

Gift—Delivery.

• In an action to recover certain bonds claimed by plaintiff to have been given to him by defendant’s intestate, plaintiff's wife testified that intestate informed plaintiff of his intention to give him these bonds; told him where they were deposited and gave him the key by which to gain possession of them. The court charged that if the key was given with intent to transfer a present title to the bonds, it effected the purpose. *Held,*no error, and that a recovery by plaintiff would be sustained.

Appeal from judgment entered upon the verdict of a jury in •favor of plaintiff for the delivery of certain Union Pacific railroad bonds, or their value, which were assessed at $11,660.44.

*736Mr. Henry Stewart, defendant’s intestate, who was a bachelor, lived in the house with plaintiff’s folks at the time plaintiff was born; he was named after Mr. Stewart, he (Mr. Stewart) choosing the name. When plaintiff was only four years of age his folks moved away, and Mr. Stewart took plaintiff to live with him, and he lived with him down to the time of Mr. Stewart’s death, in 1890, it being twenty-four years, and no other person lived with them; and they did the work in and out of doors down to the time of plaintiff’s marriage, four years before Mr. Stewart’s death, when his wife went to live with them. Mr. Stewart spoke of plaintiff as “ his boy ” and as “ his son,” and repeatedly said that “he meant to provide for him,” to give him the “biggest portion of his property.” (The amount of the securities in question is less than one-half of his estate.) He also spoke about buying a farm to give to plaintiff.

Plaintiff’s wife testified that about a year before his death, and while sick, the intestate told plaintiff to take the key of his chest and get the key to the safe deposit vault, saying: “There’s ten thousand in securities in the bank at Poughkeepsie which I want you to have for what you have been and done for me, and I hope you will make good use of it; ” that plaintiff took the keys and unlocked the chest; that after he got well intestate told plaintiff to get the keys and go to the bank with him and arrange matters, and that in his last sickness he told plaintiff to take care of the key and he would find the securities at the bank all right

At the time of Mr. Stewart’s death there were ten Union Pacific Railroad bonds, of the face value of $1,000 each, in the safe deposit vault of the Merchants’ National Bank of Poughkeepsie, rented by Mr. Stewart, which plaintiff claims were given him by Mr. Stewart before his death, in payment for his services in pursuance of his repeated promise and expressed intention. The key to the safety deposit vault was delivered to Mr. Butts, an attorney, by plaintiff after Mr. Stewart’s death, with the understanding that he should be notified when the bonds were to be taken out, and his rights should not be prejudiced thereby. Under this arrangement the bonds were produced before the appraisers and were demanded by plaintiff of the defendant and he refused to deliver them, and this action is brought for their recovery.

*Allison Butts (H. A. Nelson,*of counsel), for app’lt; *S. G. Guernsey,*for resp’t.

Pratt, J.

The proof is decisive that the deceased regarded plaintiff as his son, had brought him up as such, intended to provide for his future as for that of a son, and had put aside the bonds in suit as such a provision for him. The only question is whether he succeeded in so putting his intentions into acts that the law can carry them into effect.

An examination of the testimony shows that he informed the plaintiff of his intention to give him the bonds; told him where they were deposited, and gave him the key by which to gain possession of them.

The jury were charged that if the key was given with intent to *737transfer a present title to the bonds, it effected the purpose. There can be no question of the correctness of the law thus laid down.

There are no questions that require discussion, and the verdict is fully sustained by the testimony.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.