
    Katherine A. Stebbins, as Adm’x, etc., Resp’t, v. Thomas Hume, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Money lent—Action for recovery—Evidence insufficient to warrant VERDICT FOR PLAINTIFF.
    This action was brought by the plaintff to recover moneys alleged to have been loaned by her intestate to the defendant, his brother. The only evidence offered in support of the claim was statements alleged to have been made by the defendant, that his own and his brother’s money -was in a horse which he built, and bank book of the intestate showing* that he had, at about the time of the alleged loans, drawn money]to an amount corresponding with them. Held, that the evidence was insufficient to warrant a verdict of money lent.
    Appeal from a judgment entered in favor of the plaintiff upon a verdict of a jury and from an order denying a motion for a new trial.
    
      Thomas Allison, for app’lt; T. W. Foster, for resp’t.
   Van Brunt, P. J.

This action was brought in August, 1885, by the plaintiff, as administrator of one Alexander Hume, who died in December, 1883, to recover from the defendant, his brother, the sum of not less than $1,512, alleged to have been loaned to him by said Alexander Hume in August and September, 1883.

The evidence in the case consisted of the testimony of the brother-in-law of the deceased, Mr. Spilker, to the effect that the defendant stated to him, very shortly after his brother’s death, that he had not money enough to bury his brother, because fill the money his brother had in the bank he drew out, and his money was all in the house which he had been building, up the street, as well as all the money he had, for he had not money enough to build that house; so his brother’s money was in that house with his own, and that that made him short, and that the defendant had been building a house during that summer and fall.

Another witness, Mrs. Isabella McDowell, a sister of Alexander Hume, deceased, testified that shortly after his decease she had a conversation with the defendant, Thomas Hume, and he said that Sandy’s money was in the house.

The plaintiff also offered in evidence the account of Alexander Hume with four savings banks, which accounts commenced on July 10, 1879, and appeared to have terminated in September 1883.

The total amount of deposits prior to July 1, 1883, including accrued interest, amounted to about $1,761.06, and the total drafts to about $250.

In August and September, 1883, he drew out the whole of the moneys standing to his credit in these various banks.

It was also proved that the deceased lived with his brother, the defendant, at the time of his death, and that all the property of his brother, which the defendant handed over to the plaintiff as administratrix, consisted of certain personal effects of small value.

Upon the termination of the plaintiff’s case, a motion was made to dismiss, upon the ground that there was not sufficient evidence to warrant an action for money loaned, which was denied, and exception duly taken.

The defendant then was examined, and denied the conversation testified to, and the case was submitted to the jury, who found in favor of the plaintiff.

Upon the evidence in this case, we cannot find any proof that the deceased loaned any money to his brother.

If the defendant did make the statements attributed to him by Mr. Spilker and Mrs. McDowell, we might very well infer that the deceased was interested in the house the defendant was building, but we have no evidence as to its extent.

The fact that the deceased had money in the house is in consistent with the idea that the money was loaned to the defendant, and only harmonizes with the assumption thafc he was interested in the house with the defendant, and where the evidence is of this character a jury cannot be allowed. to speculate as to 'what were the probable facts. If the plaintiff’s evidence was true, the court was bound to determine whether or not it made out a case of a loan of money because there was no dispute as to the facts. It is true that the court was not requested to determine the question as a matter of law at the close of all the evidence.

But the question as to whether, as matter of law, a loan of money had been proved, conceding the plaintiff’s evidence to be true, was raised by the motion to dismiss, and the only question which was for the jury to determine was as to the truth of the claim of the plaintiff that the defendant had made the declarations testified to. The jury have found that he did, and although he did as has been seen, they had no right to infer from these declarations a loan of money.

It may also very well be argued that the proof that the deceased drew certain sums of money from the bank, does not show that the whole of those sums went into this house without some further or other circumstance being proven, having a tendency to establish this fact. The case of Stimson v. Vroman (99 N. Y., 14), seems to have no application to the case at bar.

Under the proofs in this case, we do not see how it could be inferred that the deceased loaned any money to the defendant for the building of the house.

The judgment appealed from should be reversed and a new trial ordered with costs to the appellant to abide the event.

Macomber, J., concurs. Barker, J., dissents.  