
    Barton et al. v. McChesney et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 17, 1888.)
    Executors and Administrators—Collection of Assets—Evidence.
    In an action by administrators against decedent’s daughter and a bank, for money belonging to decedent’s estate, the complaint alleged that the money belonged to the deceased at his death; that it was then on deposit in the bank, which had since wrongfully paid it over to the daughter; that a demand had been made on each of the defendants, but they had refused to pay it over. Defendants showed that shortly before the intestate died he gave the money to the daughter. Held, that evidence was admissible, under the complaint, to show that at the time of the alleged gift the deceased had no other property of value, and was largely in debt. Landon, J., dissenting.
    Appeal from circuit court, Franklin county; Joseph Potter, Justice.
    Action brought by Sarah A. Barton and Elizabeth B. Sabin, as administrators of the estate of Joseph McChesney, deceased, against Margaret McChesney and the People’s National Bank of Malone. The jury returned a verdict for defendants, and from the judgment entered thereon plaintiffs appeal.
    Argued before Learned, P. J., and Landon and Ing-alls, JJ.
    
      M. T. Scanlon, for appellants. Albert Hobbs, for respondents.
   Learned, P. J.

Joseph McChesney, plaintiffs’ intestate, died January 12, 1887. At the time of his death he had a deposit with the People’s National Bank of Malone, one of defendants, of $1,295.86, in what was called the “interest department.” He had a pass-book, the form of which, and the terms therein, if any, do not appear. On the day of his death, and when ill, he signed upon the cover of the book the following writing:

“Pay the bearer-dollars, on account of money standing to my credit, or subject to my control, as per book. Dated January 12,1887.

his

“Joseph X McChesney. mark.

“Thomas Bice, Witness.”

He directed Ferguson to take the book and give it to Margaret, one of the defendants. Ferguson did so. Margaret took the book, came back, and put it in the drawer. About six days before this deceased had said to Ferguson that he wanted this money passed over to Margaret with the least possible trouble and expense. On the 28th of January the pass-book was taken to the bank by Margaret McChesney, Bice, and Ferguson. They indemnified the bank, and then the money standing to the credit of Joseph McChesney, $1,295.86, was transferred by the bank, and put to the credit of Margaret in the (so-called) “general department.” Subsequently the plaintiffs were duly appointed administrators of Joseph McChesney’s estate; and thereupon they demanded from the bank and from Margaret this money, which was refused. This action is brought to recover the same. The complaint alleges that the money belonged to Joseph at his death, and w’as on deposit with the bank; that the bank had since his death wrongfully paid it to Margaret; that plaintiffs had demanded the money of each of defendants; and that they had refused to deliver it. On the trial the plaintiffs offered to show that at the time of the alleged gift to Margaret the deceased was largely indebted to divers persons for debts which are still outstanding and unpaid against the estate; also that the alleged gift contained all the property of deceased, except some old clothes and a few dollars in silver. This evidence was objected to as inadmissible under the complaint, and was excluded, and plaintiffs excepted. The evidence was offered under the right given to administrators by chapter 314, Laws 1858, to disaffirm transfers made in fraud of creditors. It seems to us that the decisions have established that such evidence is inadmissible under a complaint in this form. Jones v. Jones, 41 Hun, 163, was an action by an executor to recover money belonging to the testator, and alleged to have been received by defendant. On the trial the defendant set up a gift to him by the testator of the money Thereupon the plaintiff sought to show that such gift was a fraud on creditors, and offered proof of a debt owing by the testator. This was excluded, on the ground that it was not competent, under the pleadings. The court held this to be error. Judge Pollett, who dissented, placed his dissent on the ground that there was no evidence that the testator was insolvent at the time of the gift, and that it was not suggested that such evidence would be given. He, therefore, did not hold the evidence of indebtedness competent under the pleadings. In the present case there was an offer to show that the deceased had practically nothing except the money alleged to be given. Potts v. Hart, 99 N. Y. 170, 1 N. E. Rep. 605, was an action for goods alleged to have been converted by defendant. Answer, a general denial. Defendant showed a chattel mortgage under which he claimed title to the goods. Plaintiff gave evidence to show that the mortgage was fraudulent as to creditors of testator. A recovery for plaintiff was affirmed.- Ceas v. Bramley, 18 Hun, 187, is to the same effect. What the effect of this evidence would be we cannot say, but these decisions show that it was admissible. These views render it unnecessary to examine the questions as to the effect of the so-called transfer and the aUeged gift. Judgment reversed, new trial granted, costs to abide event.

Ingalls, J1., concurred.

Landon, J.,

(dissenting.) I do not think the plaintiffs could have given the evidence referred to in support of their cause of action under their complaint. But the defendants alleged the gift by way of an answer in avoidance. To this the plaintiffs were not required to reply, and they could overcome the effect of this gift, if established, by any evidence.  