
    Mary Ann McMurray, Adm’rx., App’lt, v. Teresa Ennis, Resp’t.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed January 26, 1891.)
    
    Money had and received—When administrator may recover money DRAWN ON CHECKS AFTER INTESTATE’S DEATH.
    A day or two after intestate’s death defendant drew money from liis bank account on checks drawn by him. The estate is insolvent. The checks bore different dates, but defendant states that she received them from her sister at one time, but does not say whether before or after intestate’s death, and plaintiff testifies that defendant claimed to have no money to meet funeral expenses with. Held, that although defendant claimed that intestate was indebted to her, the question whether the checks were delivered to her for value was one for the jury, and that a dismissal of the complaint was error.
    Appeal from judgment entered on dismissal of complaint.
    At the .time of his death, Lawrence Ennis had standing to his credit in the Market and Fulton Hational Bank the sum of $1,200.
    Some time prior to his death he drew the checks set forth in the complaint. He died on August 5, 1889.
    The defendant received these checks from her sister, but it does not appear when or why they were drawn, or why her sister gave them to her, or when the delivery was made. It is shown, however, that on the 7th day of August, 1889, she opened an account with, and deposited these checks in her own name, in the Garfield Hational Bank of the city of New York for collection. These checks were collected in the usual way, through the clearing house, on the 8th day of August, 1889, and passed to her ■credit. On August 17, 1889, she withdrew-the deposit.
    On September 9, 1889, the plaintiff was appointed administratrix of the estate of Lawrence Ennis, by the surrogate of Kings county, and shortly thereafter demanded of the defendant the proceeds of these checks, and she refused to account for the same
    
      L. B. Bunnell, for app’lt; Stimson & Williams, for resp’t.
   Van Wyck, J.

Heretofore when this cause was before us, see 10 N. Y. Supp., 698; 31 N. Y. State Rep., 976, the appeal book showed that the checks in question had been delivered to defendant by the.deceased, Lawrence Ennis, before his death, and that the defendant had paid him value for the same, or had parted with value on the faith of the checks. In fact, this was found by the trial court at the request of both parties. Our decision then, that the defendant might have a defence to this action for the recovery of the money collected by the defendant on these "checks after the death of the drawer, was based upon such admitted facts. But on the present appeal, neither the delivery of the checks before the death of the drawer nor the parting with value by defendant on the faith thereof is conceded.

The learned chief judge presided at both trials. When he dismissed the complaint on the last trial he must have been misled by the circumstance that such facts were conceded in the first trial, and thus led to assume that they were not controverted in the last In this he seems to have been mistaken, in the light of the evidence, for the testimony tends to show the contrary thereof.

The checks (three) of different dates, were drawn shortly before the death of defendant’s father, the drawer. She says she received them from her sister Lizzie at one time, but she is silent as to whether it was before or after his death; that- she did not know he was going to give them to her till she so received them from her sister; that she never had any conversation with her father about them. Her other sister, Mary McMurray, testifies that, after the death of her father, the defendant told her she had no money to meet funeral expenses with, and borrowed from her a sum for that purpose. Shortly thereafter, about two weeks, Mary McMurray testifies, she asked defendant what had become of their father’s money, when she responded that his bank book had been written up, and there was nothing in bank, and showed and handed h,er the book, when she found, among the vouchers returned, "these checks, and at once asked defendant bow she came by them, and was told that her father had given them to her, and he had a right to do as he pleased with his own money.

How, 'notwithstanding defendant does say her father was indebted to her, it does seem to us that this testimony was sufficient, at least, to carry the case to the jury on on the question whether or not tírese checks were delivered to her for value parted with by her on the faith thereof, or as a step in an attempted gift, and perhaps also on the question whether or not they -were delivered to her by her sister after the death of her father, especially as she was silent as to the time she received them from this sister, and as any presumption that they were delivered at the respective dates thereof was rebutted or put in question .by the circumstance that, though they were of different dates, it seems-she received them from her sister at the same date.

Judgment must be reversed and new trial ordered, with costs to abide the event.

Osborne, J., concurs._„  