#### DINLAY v. McCULLAGH.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Jury—Right to Jury Trial—Interpleader.

An action at law becomes one in equity by interpleader proceedings, and< neither party is entitled to a jury as a matter of right.

2. Gifts inter Vivos—Evidence.

Bare possession of a bank book and a check payable to the holder drawn by a decedent a month before death is not sufficient to establish, a gift inter vivos.

Appeal from circuit court, Erie county.

Action by Mary A. Dinlay, administratrix, against Johnston Mc-Cullagh, to recover a deposit made by plaintiff’s intestate in the Erie County Savings Bank in her lifetime. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

This action was originally brought by the plaintiff against the Erie County-Savings Bank to recover a deposit made by the plaintiff’s intestate in her lifetime. The defendant claiming title to the same deposit, and demanding payment thereof from the bank, the bank, by interpleader proceedings, obtained1 an order of the court, at special term, substituting the defendant in its place as defendant in the action, and paid over to the treasurer of Erie county the moneys in dispute. Thereupon this defendant, so interpleaded and substituted, served an answer, admitting the formal allegations of the complaint, but asserting title to the moneys in question by virtue of a delivery to him by the intestate, in her lifetime, of her cheek for the amount thereof, together with her bank book, containing her account witu the savings bank. Upon the issues thus joined, the cause came on for trial at a circuit court in Brie county, held upon the 3d day of June, 1895. After hearing the evidence, the court directed a verdict in favor of the plaintiff, and thereafter the trial justice made and filed findings respecting such trial as though the cause had been tried before him without a jury, and the defendant- duly filed exceptions thereto. A motion for a new trial upon the minutes was subsequently made and denied. Judgment was thereupon entered, and from that judgment, as well as from the order denying the motion for a new trial, this appeal i» taken.

Argued before LEWIS, BRADLEY, WARD, and ADAME, JJ.

William C. Fitch, for appellant.

Charles F. Tabor, for respondent.

ADAMS, J.

In considering the questions raised by this appeal,, it should be borne in mind that there was nothing irregular in the manner in which the learned trial justice disposed of this case at the circuit; for, although it was originally an action at law, the order interpleading the defendant transformed it into a suit in equity, and consequently neither party was entitled, as a matter of right, to a trial by jury. The court might have submitted to the jury, which, was impaneled, any or all of the traversed questions of fact, but it was under no obligation to do so, nor to adopt the conclusions of the jury had it been thus submitted. Clark v. Mosher, 107 N. Y. 118, 14 N. E. 96. With this suggestion for a guide, it is difficult to discover wherein any error has been committed which requires a reversal of the judgment and order appealed from.

*1008The action appears to have been tried upon the theory that the check and bank book, which were found in the defendant’s possession after the death of the intestate, were sufficient evidence of a gift inter vivos of the moneys deposited in the bank, although no such issue was tendered by the answer. But the mere possession of the book, or of the book and check, is but one of several elements which are esr ntial to the establishment of the defendant’s contention. There must have existed an intention upon the part of the intestate to part absolutely with her property, and such intention must have been consummated by an actual delivery to the donee. Harris v. Clark, 3 N. Y. 93; Beaver v. Beaver, 137 N. Y. 59, 32 N. E. 998; Govin v. De Miranda, 79 Hun, 286, 29 N. Y. Supp. 345. In the Ridden Case, 125 N. Y. 572, 26 N. E. 627, which is cited and apparently relied upon by the defendant’s counsel, there was not only convincing proof of an intention upon the part of the donor to divest himself of all right and title to the subject of the gift, but such intention was accompanied by an actual and formal delivery. Neither one of these elements appears to be present in this case, and therefore the learned trial justice was undoubtedly correct in the conclusion he reached, that the defendant failed to fulfill the obligation which the law imposes upon him of establishing his claim to these moneys by evidence which shall be entirely satisfactory in its character. Upon the argument of the appeal, the learned counsel sought to supply this very obvious defect in his case by insisting that the possession by the defendant of the intestate’s check for the amount of her deposit raises the presumption that it was given for a good consideration, and consequently that it operated as a complete and valid transfer of the sum of money mentioned therein. But the rule thus invoked has its limitations, and very slight circumstances will serve to repel any presumption thus created. That it was satisfactorily met in this case, and that the learned trial justice was fully supported in his finding of fact and conclusions of law, can be easily demonstrated. Perhaps it would be a sufficient answer to the defendant’s present contention to say that it is now' urged upon the attention of the court for the first time. As has already been suggested, the trial was conducted upon an entirely different theory; and, when the case was taken from the consideration of the jury, the only request made by the counsel was that the question of the delivery of the check and bank book might be submitted, and it was not even suggested that there was any other issue to be considered. But, had this not been the case, the fact that the check was signed more than a month prior to the death of the intestate, and was not presented at the bank until several months after her death, is sufficient to justify the trial court in concluding that it was not received in the usual course of business and for a valuable consideration. Stimson v. Vroman, 99 N. Y. 74, 1 N. E. 147

The judgment and order should therefore be affirmed. All concur.