
    Mary Walsh, Resp’t, v. The Bowery Savings Bank, App’lt. 
    
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    1. Gifts—Pleading.
    The complaint alleged that the depositor gave and transferred all her rights" to the deposit to plaintiff, accompanying said gift hy a delivery to her offthe pass-book. Held, that under this allegation proof that plaintiff acquired title hy a donatio cansa mortis was admissible, and an amendment of the complaint was unnecessary, but did not prejudice defendant’s rights.
    2. Same—Donatio causa mortis.
    A good donatio causa mortis may he made by the delivery of the donor’s hank hook to the donee where the circumstances exist that must surround a gift of that description.
    3. Same—Banks.
    Where the bank, after notice of the donee’s rights, pays the deposit to the administrator of the donor, the donee may maintain an action therefor against the hank, and need not look to the administrator.
    Appeal from order and judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff.
    Action to recover the amount of a deposit made with defendant by one Mary Duffy, now deceased. The complaint alleged “that on or about February 9, 1883, Mary Duffy gave and transferred said sum, and all her rights and interest therein, to plaintiff, accom ponying said gift and transfer by the delivery to this plaintiff of the said pass-book.
    On the trial plaintiff was allowed to amend the complaint, and to prove that she acquired title to the deposit by a donatio causa 'mortis.
    
    It appeared that in April, 1885, defendant paid the amount of such deposit to the administrator of Mary Duffy.
    
      Carlisle Norwood, Jr., for app’lt; W. H. Regan, for resp’t.
    
      
       Affirming 26 N. Y. State Rep., 95.
    
   Van Hoesen, J.

Under the complaint as it was originally drawn it was proper to admit proof that the plaintiff acquired title by a donatio causa mortis. An amendment was not at all necessary, though the counsel for the defendant succeeded in frightening the plaintiff’s attorney into making a motion for leave to amend. Such leave was granted, but the defendant was not thereby prejudiced.

A good donatio causa was proved. The money on deposit was given to the plaintiff, and the bank book was actually delivered to her by the donor to enable her to get the money. The donor was in expectation of impending death, and she died in a day or two afterwards of the disease whose fatal issue she anticipated. A good donatio causa mortis may be made by the delivery of the donor’s bank book to the donee where the circumstances exist that must surround a gift of that description. American & English Encyclopaedia of Law, vol 8, p. 1345, and 1346, et seq.

As to the validity of the gift in this case there cannot be a doubt, but a question is made as to the right of the plaintiff to recover the money from the bank. The money was actually drawn from the bank by the administrator of the donor, and, as the gift was valid, the plaintiff might recover judgment against the administrator in an action for money had and received tb her use. Whether such a judgment would be of any value in this case, we have no means of knowing.

In Massachusetts, it was decided in the case of Pierce v. Boston Five Cents Savings Bank, 129 Mass., 425, that even without the consent of the administrator, the donee might maintain an action for the money in the administrator’s name. Such an action could not be maintained in this case because the administrator has already collected the money from, the bank. The difficulty in which the bank now finds itself is entirely of its own creation, for after having been notified that the plaintiff claimed the money as hers by gift, it, nevertheless, either carelessly or wilfully disregarded the notice, and paid the money to the administrator. The payment to the administrator after notice of the plaintiff’s rights leaves the bank in no position to call on the plaintiff to look to the administrator for the money. By thus paying the administrator the bank stepped into his shoes and cannot defeat the plaintiff’s claim unless the administrator could successfully resist it.

The case was rightly decided, and judgment should be affirmed, with costs.

Larremore, Ch. J., and Daly, J., concur.  