
    Annie A. Devlin, Respondent, v. The Greenwich Savings Bank et al., Appellants.
    (Argued January 27, 1891;
    decided February 24, 1891.)
    Upon an appeal from an order of General Term, reversing a judgment entered upon the report of a referee, upon the facts as well as the law, and granting a new trial, this court must review the determination of the General Term both upon the facts and the law.
    To sustain the reversal of a finding of fact of the referee upon such a review, it must appear that the finding is against the weight of evidence, or that the proofs so clearly preponderate in favor of a contrary result, that it can, with a reasonable degree of certainty, be said that the referee erred in his conclusions.
    To establish a gift causa mortis, the law requires clear, convincing, strong and satisfactory evidence; it will not presume in its favor.
    As to whether a party, excluded under the Code of Civil Procedure (§ 829), from testifying to a conversation with a person since deceased, may be permitted to testify to a conversation between the decedent and a third person, qumre.
    
    Appeal from order of the General Term of the Court of Common Pleas for the city and county of New York, made March 5,1890, which reversed a judgment in favor of defendant entered upon the report of a referee.
    This action was brought to recover a deposit with the corporation defendant to the credit of one Henry Fitzsimmons, the bank-book for which plaintiff, a niece of the depositor, claimed he had given to her as a donatio causa mortis.
    
   The following are extracts from the opinion:

“The General Term of the New York Common Pleas reversed the judgment herein entered in favor of the defendant upon the report of the referee, upon the facts as well as upon' the law and granted a new trial. The defendant appealed to this court from such order. In such case, we must review the determination of the General Term upon the questions of fact as well as the questions of law, (Beebe v. Mead, 33 N. Y. 587; Code of Civil Pro. § 1338.) The principles upon which such review of- the facts is. entered upon here have been lately stated in the cage of' Baird v. Mayor, etc., of N. Y. (96 N. Y. 567). We gather from that case and from those cited by the learned chief judge in the course of his opinion, that to justify the reversal of the finding of a referee or a single judge, it must appear that such findings are against the weight of proof or that the proofs so clearly preponderate in favor of a contrary result to that reached by the referee, that it can with a reasonable degree of certainty be .said that the trial court erred in its conclusions. As said by Folger, J., in Crane v. Baudourne(55 N. Y. 256), the question is whether we are so certain that the referee was in error upon the facts as that we will assume to review his judgment %

“ The fact that the trial court has the immense advantage of seeing the witnesses as they testify, and can thus observe their general intelligence, their demeanor while under examination and the presence or absence, of fairness and candor; all this always weighed very strongly with appellate courts when asked to review and reverse the findings of fact by a court or referee.

“ The plaintiff herein claimed to recover the amount of the deposit in the bank, on the ground that her uncle, its former owner, had given it to her while he was lying ill at his house in Pennsylvania and in expectation of his death, which occurred within a short time after the alleged gift was made. In the technical language of the law she claimed the money by reason of an alleged gift mortis causa from the former owner.

“ In many of such cases there is great danger of fraud, and all the books concede that the evidence which proves the gift should be clear and convincing, strong and satisfactory. Although it may not be true that the law presumes against a gift, it certainly does not presume in its favor, but requires proof of it. (Gray v. Gray, 47 N. Y. 552; Grymes v. Hone, 49 id. 17; Lewis v. Merritt, 113 id. 386.)

Ooming to a review of the findings of fact by the referee with these rules in our minds, we are compelled to say that in our opinion the General Term erred in reversing such findings.

“ The case has been read carefully over and all the evidence on both sides has been thoroughly reviewed, and we have come to the conclusion that the referee was entirely justified in his refusal to find that any gift had been made to the plaintiff of the property in question. It cannot be said that hia findings were against the weight of evidence or that the proof clearly preponderated in favor of a contrary result.

Abram Elirng for appellant.

Wm. Henry Arnowe for respondent.

, The counsel for plaintiff asked her, when on the stand, whether she was present at a conversation between her uncle and Father Oarew. It was objected to and excluded and an exception taken. The counsel for plaintiff did not pursue the subject, He made no offer to show any fact that was material and which occurred during such conversation. The mere fact that she was present at some conversation was wholly immaterial. "We cannot see that injury resulted to the plaintiff from such ruling. It is for her to show error. To exclude evidence of her presence at a conversation between her uncle and Father Oarew upon a subject not in the least connected with the issue would not be error. Whether the conversation was of that nature does not appeal-. Nothing appears except the bald fact stated, and so there was no error.

It is doubtful if the witness could be permitted to testify as to a conversation in her presence between her uncle and Father Oarew relative to the gift she claimed. The cases of Eysaman's Will (113 N. Y. 62), and Dunham's Will (121 id. 575), have very greatly limited the old "rule in regard to such conversation.”

Peckham, J.,

reads for reversal of order of General Term and affirmance of judgment entered upon the report of the referee.

All concur.

Order reversed and judgment affirmed.  