
    (76 Hun, 10.)
    PICKSLAY v. STARR.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Gifts—Check of Donor.
    Though a check Is not the subject of gift by the maker, because he may stop payment after delivery to the donee, yet, where a person gives a check to another with the intention of making a gift to the donee of the amount thereof, the gift becomes complete on payment of the check, and the donor cannot afterwards claim that he gave it under mistake. Dykman, J., dissenting.
    Appeal from judgment on report of referee.
    Action by Charles Pickslay against Theodore B. Starr to recover $3,352.10, the balance alleged to be due the plaintiff on account of salary. From a judgment in favor of plaintiff for $4,301.78, defendant appeals. Affirmed.
    The following is the opinion of Hamilton Odell, Esq., to whom the case was referred to hear and determine:
    The plaintiff sues to recover a balance alleged to be due from the defendant for salary. The defendant avers that he has paid the plaintiff in full. The sum claimed is §3,352.10. From I860 to April, 1891, the plaintiff -was in the employment of the defendant as a salesman. The defendant seems to have dealt very generously with him, paying him a liberal salary, and adding thereto in each year from 1883 to 1888, both inclusive, a Christmas gift of §2,500. These gifts were made by the defendant’s checks, sent by him to the plaintiff from Europe. The plaintiff’s salary during these years was §5,400. In April, 1889, an arrangement was made between the parties by which the plaintiff’s salary was increased to §9,000, and, in addition to this, he was to receive, after May 1, 1890, a commission or percentage of one and one-half per cent, on yearly sales in excess of §600,000. In the evening of December 24, 1889, the plaintiff had an interview with the defendant in the latter’s office, at the close of which the defendant wished him a Merry Christmas, and handed him an envelope, which contained a check for §2,500, drawn to the plaintiff’s order. On the day following Christmas, another interview took place, concerning which the plaintiff testifies as follows: “I bade Mr. Starr ‘Good night,’ and went away, and got as far as the elevated station at 23d street, and I remembered that I hadn’t spoken to him in regard to his present, and I returned, and went up into the office again where he was, and I said: ‘Mr. Starr, I have come back. I was already at the elevated station, and I remembered I hadn’t thanked you for your present, and I came back to thank you for your present to me, and also on behalf of Mrs. Pickslay, to return her thanks to you for the present you gave her.” Mr. Starr said he was very glad that we were pleased. I said, ‘Good night,’ and then went home.” The defendant does not deny this conversation. His testimony is that he cannot recall it, but he will not say that it did not take place. Nor does he deny, in any particular, the testimony of the plaintiff touching the delivery by him to the plaintiff of the check in question. These other facts appear by the plaintiff’s testimony, and are not denied: That the check was not paid to the plaintiff in response to any request for money made by him on or before December 24, 1889; that the defendant was then indebted to the plaintiff on account in the sum of only §2,100; and that the plaintiff was never paid his salary by the defendant personally. The defendant testifies as follows: “According to my best knowledge and belief, it was January, 1891, that Mr. Pickslay came to me, and said: ‘Mr. Starr, you gave me a check Christmas, 1889. Was not that a present?’ I said: ‘No,—a present? Why, no, of course not.’ He said: ‘What did you give it to me for? I didn’t ask you for any money.’ ‘Well,’ I said, ‘Pickslay, it was a mistake.’ I had been in the habit of giving him at Christmas a present of §2,500 when his salary, was §5,400, and I said I had made a mistake that year. * * * Q. Why did you make out that check for Mr. Pickslay at that time? A. As near as I can get to my thoughts, it was that this contract, this new contract, that you see recorded in the book, was entirely out of my mind. I can’t account for it in any other way,— that that contract was out of my mind, and, having been in the habit of doing that for six years previously, I did it that time. Q. That is, not remembering this contract, you made out the usual Christmas check, or had the usual Christmas check made out, and delivered it to Mr. Pickslay. Is that it? A. That is about it, yes.” He further testified that it never entered his head to give the §2,500 to the plaintiff in addition to his salary and commissions under the new agreement, and that in December, 1889, after the check had been given, his bookkeeper inquired of him what should be done with it, and was directed to charge it to the plaintiff’s account. It was so charged, but the plaintiff was not informed of the fact, nor in any manner advised that the check was not intended and delivered to him as a Christmas gift, until the following May, when, during the defendant’s absence in Europe, he was furnished by the bookkeeper with a statement of his account from the defendant’s books.
    A gift is defined to be “a voluntary transfer of his property by one to another, without any consideration or compensation therefor. To make it valid, the transfer must be executed, for the reason that, there being no consideration therefor, no action will lie to enforce it.” Gray v. Barton, 55 N. Y. 72. The proofs in the present case show conclusively, as it seems to me, that the defendant’s plain intention, when he delivered the §2,500 check to the plaintiff, was to make the plaintiff the usual Christmas gift. It certainly was not delivered as a payment on account of the plaintiff's salary, or on account of any indebtedness due to him from the defendant. The plaintiff did not ask for it. The delivery of it was a purely voluntary act on the part of the defendant, and when, a couple of days later, the plaintiff thanked him for the “present,” and also for his “present” to Mrs. Piekslay, the defendant said that he was glad that they were pleased. The act that the defendant did he¡ would not have done had he at that time remembered the new agreement with the plaintiff, by which the plaintiff’s salary had been substantially increased; but it was exactly what he intended to do. The check was drawn by him, or by his direction, that it might be given to the plaintiff as a Christmas gift. It was so given. The defendant says: “Having been in the habit of doing that for six years previously, I did it that time.” And he cannot now be permitted to avoid the legal consequences of his voluntary and intentional act, on the ground that he did it by mistake, not recollecting facts which, had they been in his mind, would have deterred him from doing as he did.
    It is earnestly insisted in behalf of the defendant that the plaintiff’s claim, so far as it rests upon the check in question, must fail, for the reason that the donor’s own check cannot constitute the subject-matter of a valid gift. This proposition is not exactly true. A check is not, strictly speaking, an assignment of a portion of a fund against which it is drawn, but it is so practically. Harris v. Clark, 3 N. Y. 120. It represents money, and to all practical interests is money. Burke v. Bishop, 27 La. Ann. 465. What constitutes delivery of a gift must depend on the nature and situation of the thing given. Beaver v. Beaver, 117 N. Y. 428, 22 N. E. 940. When a donor delivers his own check, as in the present case, the gift which he intends is not simply the written order upon a third party for the payment of a specific sum of money, but the specific sum of money which he directs the third party to pay. Such a gift is incomplete until the check is either paid or accepted by the drawee. Until payment or acceptance, it may be revoked by the donor. But, when paid or accepted, the thing intended to be given comes actually or constructively into the possession of the donee; the possession and control of the donor are terminated, his title is divested, and the gift becomes complete. The donor cannot recover back the proceeds of the check as money paid under a mistake, nor can he insist that they shall be credited to him on account of any existing indebtedness due from him to the donee. In the present case there was no revocation of the gift. Payment of the ■check was not stopped by the defendant, but it was deposited in bank by the plaintiff, and paid, in due course of business, by the drawee bank for the defendant’s account.
    As to the remainder of the plaintiff’s claim, (for commissions upon sales during the year in excess of $600,000,) no good reason is visible to me why it should not be allowed. The defendant agreed to pay plaintiff these commissions if they accrued. They did accrue. They have not been paid, and the plaintiff is entitled to recover them. The answer contains no defense of an account stated between the parties. Plaintiff is entitled to judgment for the amount claimed in his complaint.
    Argued before PRATT, DYKMAN, and CULLEN, JJ.
    Vanderpoel, Cuming & Goodwin, (Delos McCurdy, of counsel,) for appellant.
    William H. Ford, for respondent.
   PRATT, J.

The important question is whether the $2,500 check received by plaintiff! from defendant the day before Christmas, 1889, was a gift, or whether it was an advance on account of plaintiff’s salary. The referee has found it to be a gift, and we do not see how he could reasonably have decided otherwise. The referee’s opinion discusses the matter so fully that there is no need to pursue the argument further. The suggestion that a check cannot be a valid gift has no weight. It may well be that, had the maker of the check stopped its payment, an action against the maker could not have been maintained. But, after the money was paid, the transaction could not be revoked; the gift was complete. That is to say, although the gift of the check might not be binding and irrevocable, the check was the means and instrument by which the gift of money was effected. Judgment affirmed, with costs.

CULLEN, J.

I concur, on the ground that if the defendant made the present under mistake, or forgetting that plaintiff’s salary had been increased, he should, upon discovering the error, have disapproved the transaction and notified the plaintiff.

DYKMAN, J.,

(dissenting.) This is an appeal by the defendant from a judgment entered upon the report of a referee in favor of the plaintiff. The action is for services, and the only question of fact involved upon this appeal is whether a check delivered to the plaintiff by the defendant was a Christmas present or a payment on account for services. The check was delivered to the plaintiff by reason of a momentary lapse of memory. In other words, it would not have been delivered if the fact that the salary of the plaintiff had been increased had not escaped the memory of the defendant. The plaintiff had been in the employment of the defendant for several years previous, and the defendant had been in the habit of making him very handsome Christmas presents. On this occasion, forgetting that the salary had been increased, he handed him the check in question. Its delivery was, in a broad sense, a mistake. If all the facts had been in the mind and recollection of the defendant, the check would not have been given. It was not delivered in full view of the nature and consequence of the act. It never was the intention of the defendant to give the plaintiff $2,500 in addition to the increase of his salary. Intention controls all transactions, and especially gifts. A delivery of property with intent to make a gift passes the title. Without such intention there is no gift, and the delivery does not pass the title. The admission of testimony respecting previous Christmas presents was erroneous, but we place oiir decision upon the ground that the delivery of the check was not a present, and must be allowed to the defendant in this action as a payment.  