#### MACLAY V. ROBINSON et al.

(Supreme Court, General Term, First Department.

December 30, 1895.)

Gifts inter Vivos—Evidence.

A father declared his intention to make a gift to his son by having the son’s debit to a firm, of which they were members, transferred to the father’s account, and instructed the bookkeeper to make such transfer. The bookkeeper made a memorandum thereof, and showed it to the son, but had made no entry on the books of the transfer when the father died. *Held,*that the gift was complete. Parker, J., dissenting.

Appeal from judgment on report of referee.

Action by Mark W. Maclay against Jeremiah P. Robinson and others for an accounting and liquidation of the affairs of the firm of J. P. Robinson & Co. From a judgment entered on the report of a referee, defendant Jeremiah P. Robinson appeals.

Reversed.

Argued before VAN' BRUNT, P. J., and PARKER and PATTERSON, JJ.

Frank D. Sturges, for appellant.

Wilhelmus Mynderse, for respondent executors.

PATTERSON, J.

We are unable to adopt the conclusion reached by the referee on the only question presented by this appeal. That question is between a surviving partner and the representatives of a deceased partner on the settlement of the copartnership accounts. The evidence shows that the deceased partner, Mr. Robinson, Sr., declared his purpose of having the balance standing to the debit of one of his partners, viz. his son, transferred to his own account, in consideration of the unprofitable condition of the business and the faithful attention that son had given it. The referee finds (sixth finding) that Mr. Robinson, Sr., with the intention to cancel his son’s indebtedness, instructed his bookkeeper, Mr. Banger, to transfer his son’s indebtedness to the father’s account, and that Mr. Banger (who died before the hearing of the cause) made a memorandum which was shown to Mr. Robinson, Jr., and which was made pursuant to the instructions the father had given. That finding is justified by the evidence. Regarding the transaction as a gift from father to son, as both parties have presented it, it was not of that incomplete character the referee held it to be. The intention to make the gift had been formed and declared. The subject of it was incapable of actual physical delivery. Steps were taken to effectuate it, and directions given. All that was omitted was a bookkeeper’s ledger entry, and positive instructions had been given him to make it. He did make a memorandum of those instructions, which he placed in the ledger, but did not actually make an inscription in the accounts before Mr. Robinson, Sr., died, which event happened shortly after *531the transaction. All that Mr. Robinson, Sr., could personally do or had contemplated doing to perfect the gift, had been done. The mode of furnishing the evidence had been appointed by him. The bookkeeper received his instructions, and acted upon them to the extent of reducing them to a written memorandum, from which to make the entries, but he merely omitted to post from that memorandum to the ledger. So far as the gift was susceptible of delivery, it was delivered to the common agent of both parties, the agent of the recipient as well as of the giver. Had it been to the sole agent of the giver, it might have been recalled; but the partnership bookkeeper received his orders, and they were communicated to young Mr. Robinson, and considering the subject-matter of the gift, that it was a transaction of accounts only, we think it was complete and irrevocable. The judgment should be reversed as to the statement of accounts of the respective partners is concerned, and the accounts should be restated by charging that of Mr. Robinson, Sr., and crediting that of Mr. Robinson, Jr., with so much of the latter’s indebtedness to the firm as appeared by the book to exist on the 1st day of July, 1886; that being about the date of the assumption by Mr. Robinson, Sr., of that indebtedness.

VAN BRUNT, P. J., concurs. PARKER, J., dissents.