
    John Podmore, Administrator, Etc., of Annie Podmore, Deceased, Respondent, v. The Seamen’s Bank for Savings, Appellant.
    (City Court of New York, General Term,
    June, 1901.)
    Evidence — Code C. P., § 839 — Defense of payment ■ to donee causa mortis of depositor.
    Where an administrator of a depositor sues a savings bank for the depositor’s balance of account, and the bank answers that it has paid it to a third party as donee causa mortis of the depositor, the bank has a right to the testimony of the donee regarding the gift and its exclusion, under Code C. P., § 829, is erroneous.
    Appeal from a judgment for the plaintiff entered upon a verdict directed by the court. Action to recover a balance due Annie Podmore, the plaintiff’s intestate, upon an account which she had with the defendant. The defendant answered that the depositor had made a gift of the deposit, causa mortis, to one Bridget Reilly and that it had paid the money to her.
    Henry S. Wardner, for appellant.
    Hymes, Woytisek & Schaap (Michael Schaap and Edward Hymes, of counsel), for respondent.
   Hascall, J.

We think that the court at Trial Term erred in striking out the testimony of Bridget Reilly, and in not submitting to the jury the question as to whether there had been a gift to her of the money deposited and the account, kept with the defendant bank, already paid over and closed — it was the direct-issue involved under the defendant’s pleading.

Mrs. Reilly is not an interested party, to be precluded from testifying, under section 829 of the Code of Civil Procedure, is not a party at all, nor a person from, through or under whom such a party * * * derives his interest.” The bank, it appears, in no way succeeded to her title, and she is not “ interested in the event,” within the meaning of the statute, and could not be bound by the judgment, whichever way it should go; for these reasons her testimony was competent, 62 N. Y. 80; 104 id. 507; 113 id. 242.

Judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event. ■

O’Dwyer, J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  