
    Mary A. Dinlay, as Administratrix, etc., Resp’t, v. Johnston McCullagh, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Action—Interpleader.
    An order, interpleading the defendant, transforms an action at law into a suit in equity, and neither party is entitled, as a matter of right, to a trial by jury.
    3. Gift—Inter vtvos—Proof.
    The mere possession of a bank book, or of such book and a check, is but one of several elements which are essential to' the establishment of a gift inter vivos. There must exist an intention upon the part of the alleged donee to part absolutely with her property, and such intention must have been consummated, by an actual delivery to the donee. So, bare possession ■ of á bank book book and a check payable to the holder drawn by a decedent a month before death was held not sufficient to establish a gift inter vivos.
    
    Appeal from a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial.
    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 thereof from the bank, the bank by interpleader proceedings, obtained 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 former 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 check for the amount thereof, together with her bank book, containing her account with the savings bank. Upon the issues thus joined, the case came on for trial at a circuit court in Erie county, held upon the third 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. Amotion fora 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 is taken.
    William C. Fitch for app’lt; Charles F. Tabor, for resp't.
   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 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 atrial 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 obligations to do so, nor to adopt the conclusions of the jury had it been thus submitted. Clark v. Mosher, 107 N. Y. 118; 11 St. Rep. 758. 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.

The 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 essential to the establishment of the defendant’s contention, There must have existed an intention upoa 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; 50 St. Rep. 69; Govin v. De Miranda, 79 Hun, 286, 61 St. Rep. 800. In Ridden v. Thrall, 125 N. Y. 572; 35 St. Rep. 913, 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 or 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 depositraises the presumption that it was given for a good consideration, and consequently'that it operated asa 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 tp 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, but 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.

The judgment and order should therefore be affirmed.

All concur.  