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and 106 New York State Reporter

dial, as were also the relations between the plaintiff and his two daughters. A few days before the 21st of March, 1900, the plaintiff was taken seriously ill with a complication of diseases, which it is unnecessary to describe, of such a character that it was deemed best to remove him to one of the public hospitals of the city, and he was accordingly taken to such hospital on said 21st of March, 1900. He was attended by a physician, who pronounced his condition critical. Another physician was called in consultation. They both determined that the plaintiff could not live, and that in all probability his death would occur within a short space of time. The attendants at the hospital, Father Rengel, and the members of plaintiff's family, including the plaintiff's son, were informed of such conclusion by the physicians, and the last sacrament was administered by another priest procured by Father Rengel. After such sacrament had been administered, at least within a few days, while the plaintiff concededly was in a very critical condition, Father Rengel called and suggested that the plaintiff might dispose of his property, without the necessity of drawing a will for that purpose, by means of checks which should take effect in case of plaintiff's death, and which might be destroyed in the event of his recovery. Accordingly three checks were drawn, each bearing date April 4, 1900,-one for $1,000, payable to the defendant Henry D. Joyce; one for $500, payable to the order of Mrs. Hobern; and another payable to Mrs. Laughlin, the amount being left blank, it being the intention, apparently, that she should have the balance remaining, whatever the amount, after the other two checks were paid. These checks were signed by the plaintiff, and were put by Father Rengel in a pocketbook which was placed in a satchel which hung at the foot of plaintiff's bed. Up to this point there is substantially no contradiction in the evidence. Only the plaintiff and Father Rengel were present during the transaction, and the testimony of both is to the effect that the plaintiff believed he was going to die; that the checks were made as a means of disposing of his property in case he died, and were not to be used or have any validity in case he recovered. There is a controversy between Father Rengel and the plaintiff as to some of the details. The plaintiff stated that Father Rengel brought the checks with him. Father Rengel testified that he found them in the satchel. The plaintiff stated that these were the only checks which were signed by him. Father Rengel testified that he first drew, and the plaintiff signed, one check for $1,000, payable to his son, one for $1,000, payable to Mrs. Hobern, and one signed in blank to Mrs. Laughlin, and that upon a day subsequent the three checks above referred to were made out and signed. Father Rengel also testified that upon one of the occasions a short will was made out, devising the vacant lots referred to to Mrs. Laughlin. This the plaintiff denied, and stated that no will was made or executed by him; but it is considered that these details are of no importance, because the fact remains that concededly it was the understanding on the

part of the plaintiff that the checks as finely drawn and signed were only to have validity and force in case the plaintiff died. In case of his recovery he should be free to destro them, and that no delivery of them should be made until after his death. It appears that immediately after such checks had been draw by father Rengel, he informed the plais tiff's son of the fact that they had been drawn and signed, and that they were in the plaittiff's satchel. Why he did so does not appear. Certainly there is no evidence indicating that he was instructed by the plaintiff to give such information. A few days after this occ rence the son called at the hospital, accompa nied by a notary public, with deeds prepared which, when signed, would convey the vacant lots owned by the plaintiff to the defendant and asked the plaintiff to sign them. The plaintiff, as testified to by him (and it is not contradicted), was raised up in his bed by his son, a pen placed in his hand, and be executed the deeds and acknowledged them before the notary public, and thus the lots and all the real estate owned by the plaintiff were transferred to the son. That transaction is not in question here, and it is only referred to for the purpose of showing that, apparently without any previous conversation in relation to such transfer, the conveyances were willingly executed by the plaintiff upon the simple request of the son, and because of the circumstance that a notary public was taken to the hospital by the son for the purpose of taking the acknowledgments without, so far as the evidence discloses, any knowledge on the part of the son that the father would execute such conveyances. This is deemed of some significance, especially in view of the evidence of Father Rengel, which, if true, proves that only a few days before the plaintiff had by will devised the same lots to his daughter, Mrs. Laughlin. The son, Henry D. Joyce, and the daughter, Mrs. Laughlin, testified that, a stort time after the deeds above referred to had been executed,-the length of time does not appear,-they went to the hospital to see their father, and were informed by an attendant that the nurse was engaged with him, and that they could not see him at once; that they waited in the reception room for a short time. and were finally shown into the room of the plaintiff, where they were alone with him. They both testified, in substance, that the plaintiff at that time told the son that the check for $1,000 had been made in his favor, and to get it out of the pocket book in his satchel, which the son did, handed it to the plaintiff, and that the plaintiff handed it back to the son, saying, in substance: "Take the money. Buy a house with it. Take care of it. Use it to good advantage," etc.,-in substance. that the father then and there made actual delivery of the check to the son, and that when he had done so he had a fit of crying, turned his back upon the two children, and they were so overcome with grief that they had to leave the room; the son making sure, however, to take the check with him. Soon after it occurred to the son that the money could not be drawn out of the savings bank without the bank book, and he returned to the bedside of

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s father, reminded him of the fact, and he en also presented him with the bank book. he plaintiff absolutely denied that any such ansaction ever took place. He stated that e did not know that the check made out to s son had been removed from his satchel unI about the time or after he left the hospital; at he found the other two checks, made to tch of his daughters, respectively, there, and at he destroyed them; that when he had sufciently recovered from his illness he went to is son's house, and was informed that the on had obtained the money upon the check nd applied it in payment for the house and t in question. The plaintiff testified that he no manner authorized such payment or such se of the clerk,-in short, that the check was ever delivered to the defendant by him, or ith his knowledge or consent; that it was is intention, as he was informed by Father tengel was his right, to destroy such check in ase he recovered. The defendant's wife tesified that previous to the time when the plainiff went to the hospital he said to her that he tended to give her husband $1,000, and that e urged them to buy the house in question, romising that, if they did, such $1,000 would e paid to them by him. The daughter, Mrs. Laughlin, testified that her father had exressed to her the intention to help the son to urchase a home. The plaintiff in substance lenied all such conversations, and insisted hat, while he intended his son should have $1,000 and his two daughters the balance of is property at his death, he did not intend hat such disposition should be made until hat time. The plaintiff, while at the hospital, paid the charges there out of his pension noney. It was not quite sufficient for the purose, and he owed his son $20, or thereabouts, for that expense, paid by the son; but, according to the testimony of both, the father promised to repay the same. After the plaintiff left the hospital and went to the house of his son, he again commenced paying for his board, and was under the necessity, as he thought, at least, of so doing. His situation then was that he only had his pension money and the income on $1,000 with which to support himself, and was in poor health, and required constant medical attention. As is frequently the case with old people in such circumstances, the plaintiff found that his treatment in the home of the son was unsatisfactory. A quarrel ensued between him and the son's wife, with the result that they did not speak, or, at least, the plaintiff did not speak to her. This continued for a short time, when the plaintiff, whether for sufficient reason or not is not important, felt that he could not longer continue to make his home with the defendant, and left to obtain a home elsewhere. He demanded that the house and lot purchased by the son with the $1,000 be conveyed to him, charged the son with fraud in procuring the $1,000, and declared that he had never delivered the check to him. The defendant refused to comply with the demand made by the plaintiff, and this action was brought.

It will be seen that upon the only important or material question involved, to wit, whether or not the check for $1,000 was delivered by

the plaintiff to the son with the intent that the title should immediately vest in him, the affirmative of the proposition is supported by the positive testimony of the son and daughter, and is denied by the father with equal positiveness, and they are the only witnesses to the transaction. The father and son are both interested in the result of the litigation. The daughter, so far as appears, is not. Therefore, if regard is had only to the number of witnesses and to the words of their testimony, and no heed is given to the circumstances surrounding the transaction, the defendant has established his defense, and has sustained the burden which was upon him of establishing the gift by sufficient, clear, and satisfactory evidence. What are the important circumstances which should receive consideration? The plaintiff was nearly 70 years of age; was very sick; was feeble; thought he was going to die within a short time; his physicians were of that opinion, and so informed the priest, relatives, and friends. The last sacrament of the church had been administered. The last act had been done to prepare the plaintiff for death. Then and under those circumstances the check in question was made, upon the suggestion of the priest, and concededly there was no thought or intention at that time on the part of the plaintiff that it should then become the property of the son. It was expressly said that, if he recovered, he reserved the right to destroy the check. At the time it is claimed this intention on the part of the plaintiff was changed, and the check was delivered to the son, concededly the enfeebled condition was still present. The plaintiff was nervous, and presumably was still under the impression that he was soon to die; at least, nothing had occurred up to that time to justify any other expectation. He was so weak or nervous that he had a fit of weeping immediately upon the close of the transaction, as claimed by the defendant. Only a day or two before he had signed away all his real estate simply at the request of the son, and, so far as appears, without any negotiations having taken place or any conversation having been had in respect to such conveyances. Can it be said, even if the check was delivered to the son under those circumstances, and while the plaintiff was in such feeble condition both of body and mind, that it was intended to be a gift to take effect in case of the plaintiff's recovery? According to the undisputed testimony in respect to the transfer of the real estate, it was only necessary for the son to ask for what he wanted. The transfer of the real estate was made, according to the testimony, at the mere suggestion of the son, notwithstanding a day or two before the plaintiff had willed it to his daughter, Mrs. Laughlin, according to the evidence of Father Rengel; and such transfer was made without any reference to the fact that a will had been made, and, so far as appears, without negotiation or conversation in respect to it. So far as appears, when the checks were drawn, the intention of the plaintiff was the same with re spect to each of them. That there was any difference is not suggested by a single witness in the case, and it is an important circum

and 106 New York State Reporter

42 N. Y. Supp. 133, the headnote is as follows and would seem to be especially applicable to the facts of the case at bar: "Where a per son alleges that a gift was made, he must es tablish that fact by satisfactory proof; and where it appears that the parties were not upon even terms, as respects age, intelligen and capacity, evidence which tends to defeat the right of the weaker party should be ser tinized with care. Among the essentials of a valid gift inter vivos are competency, intertion, and freedom of the will. When a transaction between an old, feeble, and ignorant mother, of uncertain capacity, and her daugh ter, comparatively young, in good health ani of superior understanding, claimed by the lat ter to constitute a gift, will not be sustained as such." The transaction referred to is strik ingly similar to the one alleged by the defendant. Clear and satisfactory proof was held to be essential in De Puy v. Stevens, 37 App Div. 289, 55 N. Y. Supp. 810. In Case T. Case, 49 Hun, 83, at page 87, 1 N. Y. Supp 716, it was said: "In cases where confidential relations exist between the parties, the person obtaining the gift must show by the clearest evidence that the gift was freely and de liberately made. The burden is upon the person taking the gift to show that the transac tion was fair and honest." In that case, in reciting the facts, the court said: "At the time the deed was executed and delivered the donee of this gift occupied a close confidential relation towards the plaintiff, who is his sis ter, and the transaction embraced her entire estate, so that at the age of 60 and upwards she is left penniless." That circumstance was regarded by the court as important in impel ling it to the conclusion that the proof was not sufficient to sustain the gift which was the subject of that litigation. We think the proof in the case at bar, when its probative force is measured by the rules laid down in an upbroken line of authorities,-to wit, that it must be clear, satisfactory, and convincing,-falls far short of establishing the validity of the gift set up as a defense to the plaintiff's cause of action, and that the conclusion reached by the learned trial justice is not supported by the evidence. It follows that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide event.

stance that with reference to the two checks | her property, and such intention must have the intention of the plaintiff was precisely as been consummated by an actual delivery to testified to by him, and that upon recovering the donee." In Re Rogers, 10 App. Div. from his illness they were destroyed.. He found the two checks where he had directed Father Rengel to place them, and did with them precisely as he told Father Rengel he would, to wit, destroyed them upon recovery from his serious illness. The plaintiff testified that was his intention with reference to the check in question, but that, when he went to his satchel to find and destroy it with the other two, he found it had been removed,-removed, as he states, without his knowledge or consent. The relations which these parties sustained to each other should have great weight in ascertaining what the intent of the plaintiff was, even if it should be concluded that the check was handed by him to the son. The son was strong, vigorous in mind and body, and had sustained friendly and confidential relations with his father. The only home of the father was with the son. The father was sick. Death was imminent. His will was gone, or greatly enfeebled. Again, if the contention of the defendant is to prevail, it must be concluded that the plaintiff deliberately intended to make himself substantially a pauper, and dependent upon the charity of his son or the other members of his family, which is, to say the least, unnatural, and therefore challenges our belief. The income from the savings of a lifetime was no more than sufficient to provide for the plaintiff's support and comfort while he should live; and while it is undoubtedly true that he intended that his children should have what remained at his death, in the proportion indicated by the checks which were drawn, it by no means follows that he intended to devest himself of a substantial portion of his property while he lived. Considering all the circumstances, we are irresistibly led to the conclusion that it ought not to be found, upon the evidence, that the plaintiff intended to so distribute his property, or any portion of it, at the time in question. The three checks were substantially the same as money. If, instead of the check, $1,000 in bills belonging to the plaintiff had been in his satchel, would the statement of the son and daughter be regarded as sufficient to transfer such money to the son, against the positive testimony of the plaintiff, under the circumstances disclosed in this case? It is to protect the property rights of persons situate as the plaintiff in this case was that the stringent rules have been laid down by the courts with reference to the character of evidence which is necessary to establish a gift alleged to have been made under circumstances similar to those disclosed by the evidence in this case. In Farian v. Wiegel, 76 Hun, 462, 28 N. Y. Supp. 95, the court said: "Where one claims title to property by a gift, he must establish it by evidence which is clear, convincing, strong, and satisfactory.' In the case of Dinley v. McCullagh, 92 Hun, 455, 36 N. Y. Supp. 1007, it was said: "Mere possession of a book, or book and check, is but one of several elements which are essential to the establishment of the plaintiff's contention. There must have existed an intention upon the part of the intestate to part absolutely with

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KANE v. NEW YORK CENT. & H. R.

R. CO. (Supreme Court, Appellate Division,
Fourth Department. October 1, 1901.) Action
by Frank Kane against the New York Central
& Hudson River Railroad Company.
No opin-
ion. Appeal dismissed, with $10 costs.

KARPEL, Respondent, v. KASSE, Appel lant. (Supreme Court, Appellate Term. June, 1901.) Action by Solomon Karpel against Mendel Kasse. Abraham I. Spiro, for appellant. Elias Rosenthal, for respondent.

PER CURIAM. The receipt given by plaintiff on June 9, 1900, was, at best, but prima

cie evidence that the payment then made coved all previous transactions between the pares. The plaintiff swore that it did not cover e goods the value of which is sued for ere, and the defendant swore it did. The stice had the witnesses before him, and was a better position than we can be to dede which was most reliable. By an aprent error of calculation, judgment was renered for $1.50 too much. It should be modied by deducting that sum, and, as modified, firmed, without costs. Judgment modified, ad, as modified, affirmed, without costs.

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KELLAS et al., Respondents, v. McLAUGHIN et al., Appellants. (Supreme Court, Apellate Division, Third Department. Septemer 18, 1901.) Action by John P. Kellas and Mary Munsill, as executrix, etc., of Newcomb 1. Munsill, deceased, against Sarah McLaughin, William McLaughlin, and others.

PER CURIAM. On payment of $10 costs of this motion, the appellants may serve notice of settlement of case within 5 days from service of copy of this order, or within 20 days from ervice of copy of this order may serve printed ase on appeal; otherwise, motion granted, with $10 costs.

KENE v. HILL et al. (Supreme Court, Apellate Division, Second Department. November 15, 1901.) Suit by Emma C. Kene, as executrix, etc., of Cornelius E. Kene, deceased, gainst Rosalie Hill and others. From an orler appointing a receiver in supplementary proceedings, certain defendants, as trustees, appeal. Reversed. William L. Snyder, for appellants. William P. Burr, for respondent.

PER CURIAM. Without passing on the merits, we reverse this order, and grant the

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KERIGAN, Respondent, v. BROOKLYN UNION EL. R. CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by William J. Kerigan against the Brooklyn Union Elevated Railroad Company and the Brooklyn Heights Railroad Company. No opinion. Judgment affirmed, with costs.

KESSLER et al., Appellants, v. SHAUGHNESSY. Respondent. (Supreme Court, Appellate Division, Second Department. October 23, 1901.) Action by Julius Kessler & Co. against Edward J. Shaughnessy. No opinion. Motion granted upon payment of costs, to be taxed.

KIRKMAN, Appellant, V. CARLSTADT CHEMICAL CO., Respondent. (Supreme Court, Appellate Term. June. 1901.) Action

and 106 New York State Reporter

by Samuel J. Kirkman against the Carlstadt has no weight, there being nothing in wy Chemical Company. E. S. Hull, Jr., for ap- of settlement of disputed claims to serve as i pellant. Holt & Duross, for respondent. No consideration, or any element to support as opinion. Judgment reversed, and new trial accord and satisfaction. Judgment affirmed granted, with costs to abide the event. with costs.

LANDES, Respondent, v. WHITNEY, Ip pellant. June, (Supreme Court, Appellate Term June, 1901.) Action by Leonard Landes agains Frederick C. Whitney. Howe & Hummel, fe No opinion. Judgment affirmed, with costs appellant. W. H. Schnitzler, for respondent

KLEIN, Respondent, v. EAST RIVER ELECTRIC LIGHT CO., Appellant. (City Court of New York, General Term. 1901.) Action by Frederick Klein against the East River Electric Light Company. Beardsley & Hemmens (Charles I. Taylor, of counsel), for appellant. Dittenhoefer, Gerber & James (David Gerber, of counsel), for respondent. No opinion. Order appealed from affirmed, with $10 costs and disbursements.

KOLASKY, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Samuel Kolasky against the Metropolitan Street Railway Company. A. S. Sarasohn, for appellant. H. A. Robinson (G. Glenn Worden, of counsel), for respondent.

PER CURIAM. Plaintiff's exception to the ruling of the court upon the question of the admission of the ordinance was well taken, and requires a reversal of the judgment. Judgment reversed, and new trial ordered, with costs to abide event.

KREIZER, Respondent, v. KITAOKA, Appellant. (City Court of New York, General Term. May, 1901.) Action by Bernard Kreizer against Yoshizo Kitaoka. Stern, Singer & Barr (William J. Barr, of counsel), for appellant. Fromme Bros. (James A. Douglas, of counsel), for respondent.

PER CURIAM. The order appealed from must be affirmed. The record shows willful contempt for the court's mandate. The de fendant disposed of his property contrary to the injunction contained in the order for his examination, thereby causing plaintiff's damage in at least the sum of $250. The order appealed from is affirmed, with costs. Order affirmed, with costs.

KREMER, Respondent, v. ADLER et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by Benjamin M. Kremer against Max Adler and others. S. Goodelman, for appellants. Sanders & Feltenstein, for respondent.

PER CURIAM. The testimony clearly shows that the account presented to the defendants on January 22, 1901, was correct and past due. The alleged arrangement then said to have been entered into between defendants and the plaintiff's agent, that they should pay less than the amount of the bill in full of same and return some of the goods, was at once repudiated and disavowed by the principal, and notice thereof given to the defendants. The deduction from the account was thus rendered nugatory. It is quite true the plaintiff retained and used the defendants' check for the reduced sum, which was marked "in full to date." This of itself

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