
    Gerhard H. Bick, Administrator, etc., Resp’t, v. Catharine Reese, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Gifts causa mobtis—Evidence:—Sufficiency of.
    In an action to recover possession of government bonds and a bond and mortgage owned by the deceased intestate in his life-time, the defense was that the securties were given to her by the intestate, who was in expectation of his impending decease. The defendant, on the trial, testified that the intestate gave her the pocket-book containing the secureties, and one B. testified that the intestate, on one occasion during the illness, told her to keep the pocket-book, that every thing in it belonged to her, and to use them for herself. The witness denied that he had stated to H. before the trial that he knew nothing about the bond and bond and mortgage, or about the woman H., for plaintiff testified that he did have such conversation with B. Held, that the verdict of the jury against the defendant cannot be disturbed upon the alleged ground that it was against the weight of evidence.
    S. Peactice—Who entitled to the affibmative.
    Defendant’s counsel was not entitled to the affirmative, as the answer denied material allegations of the complaint which it was necessary to ■ meet by proof before the plaintiff could safely rest the case.
    
      Appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial.
    
      Jonathan Marshall, for app’lt; Ohauncey Shaffer and George H. Kracht, for resp’t.
   Daniels, J.

The action was brought to recover the possession of government bonds and a bond and mortgage owned by the deceased intestate in his life-time. Prior to the time of his decease these securities passed into the possession of the defendant, and by way of defense to the action it was alleged in her behalf that they were given to her by the intestate in expectation of his impending decease. He was at that time confined to his residence by an illness which soon afterwards resulted in his death. And these securities were at that time in the possession or subject to the control of the defendant.

To maintain the defense it was indispensable that the defendant should prove as a fact that these securities had been so donated to her by the intestate in view of his approaching decease. When they were demanded from her •on behalf of the administrator, she asserted the fact to be that they had been so given her by the intestate. And to that extent this assertion was evidence in her favor. And in the course of her examination as a witness in the action she also stated that the intestate gave her the pocket-book ■containing these securities. But she did not state, and was not competent as a witness to testify, that they were given to her by him to vest her with the title to them in the event of his decease from the illness by which he was at that time affected. Her evidence went no further than to show the manner in which she had become possessed of the pocket-book containing the securities.

To prove that a gift of the securities had in fact been made to her, reliance was mainly placed upon the evidence of Valentine Bendle. He testified that he was present on one occasion during the illness of the intestate when the latter asked the defendant if she had got his pocket-book yet, and she replied that she had, and went out of the room and_ upon returning showed it to him. Then the witness testified that the intestate said: “All right, keep it; what is in there, them papers and everything belong to you, keep them, if anything should happen to me use them for yourself, they belong to you.” And this evidence was again repeated by the witness, in the further progress of his examination.

And it did tend directly to establish such a gift of the securities as was relied upon for a defense to the action. But he was interrogated in his cross-examination as to whether he had not stated to Gustave V. Heinrich, about four months prior to the trial, and in the store of the latter, that he knew nothing about the pocket-book, or the bond, or the bond and mortgage of the property, and did not know anything about the woman. He denied he made this statement. And" after the close of the evidence for defendant, Heinrich was put upon the stand and testified that he had a conversation with Bendle, in which he said that, he did not know anything about the bonds or about the woman. This was a. direct contradiction of the testimony of Bendle, upon a very material circumstance in the case. And it tended to reduce the credit which the jury would otherwise have been entitled to give to his evidence as a witness.

There was other evidence in the case concerning statements made by the intestate, that he intended to take care of, or do well by the defendant. And also showing the services that she and her daughter had rendered to the intestate, in managing and taking care of his property, and hi© residence. But this evidence was only indirectly connected with the controversy between the parties. It tended at the most to disclose a probability that the intestate would give a portion of his property to or otherwise provide for, the defendant for her services and attention. The evidence upon which the fact depended, that he did make such a provision for her, was obtained in the manner already mentioned, from herself and this witness Bendle. And that with the other testimony in the case, presented no more than a question of fact to be determined by the jury, involving the making of this alleged gift. They discredited this evidence, and found against the title set forth by way of defense to the action."".And having found the fact in this manner, upon evidence permitting that conclusion to be adopted, the verdict of the jury cannot be disturbed upon the alleged! ground that it was against the weight of evidence.

The case was submitted to the jury very clearly and impartially, and no exceptions were taken to the direction© given to them by the judge presiding at the trial.

There were exceptions, however, to rulings made by the court in the course of the trial which have been relied upon as sustaining the appeal from both the judgment and the order. At the opening, and also at the close of the case the dófendant’s counsel insisted that he was entitled to the affirmative both in giving evidence and submitting the case-to the jury But he clearly was in error in taking this, position, for the answer denied material allegations contained in the plaintiff’s complaint, which it was necessary to meet by proof before the plaintiff could safely rest the case.

While the defendant was under examination as a witness, and when she was interrogated as to the time ot her coming to this country, an objection was taken to her competency to testify under _ section 829 of the Code of Civil Procedure. And this objection was sustained by the court. But it is entirely evident that it was not intended by the ruling to which the exception was then taken to wholly exclude this witness from testifying in the case, for her testimony was continued .afterwards at length and in detail. And only so much of her proposed evidence as related to the statements of the intestate, or transactions with him, was excluded by the court. And that corrected the ruling and applied, as it should be, the rule prescribed by this section of the Code. She was also asked how she came by the bonds and the securities, and her answer, upon a general objection, making no reference to her incompetency, was excluded by the court. But for a similar reason this exception can be of no service to the defendant, for in the course-of her further examination she testified, without objection, that the intestate handed her the pocket-book and that she saw no money in it when he gave it to her. She was, upon a like objection, at first prevented from answering the question, whether she was at the residence of the intestate at his request or on her own account. But she was after-wards permitted to testify, on the cross-examination, that ¡she went there because of a telegram received by her from her daughter. Whether the intestate paid her for her services was not an important fact in the controversy, for no payment by him was either alleged or insisted upon as a fact in the case.

The presumption accordingly was that she had not been paid, and the exclusion of this evidence was attended with no injury to her defense. She was not competent to answer the further question whether she kept the pocket book for the intestate or not, for it related to a transaction between herself and the deceased. And the objection to this evidence was presented as fully as that was required to be by the case of Sanford v. Ellithorp, 95 N. Y., 48. What she did with the pocket book it was not material to inquire, inasmuch as she had already stated that it was given to her by the deceased, and she had retained it, as the fact abundantly appeared by other evidence given in the course of the trial.

The defendant also excepted to the ruling allowing proof of the fact to be that a hundred dollars had been paid upon the debt secured by the bond and mortgage. But this evidence was beneficial to herself rather than to the plaintiff, .and the exception to its admissibility is devoid of support. At the close of the trial the witness, Bendle, was called ¡back to the stand and asked whether 'he had the conversation with Heinrich which the latter stated he did, respecting the bonds, and in which he told him.that he knew nothing about them. This was excluded by the court, and an exception taken on behalf of the defendant. But this exception can be of no benefit to her since all that she was entitled to do, was to obtain from the witness any explanation that he might be able to give concerning the evidence given by the witness, Heinrich. An explanation it was not proposed to obtain from him, but the inquiry was, whether he had the conversation, and made the statements which Heinrich testified he did. That Bendle had previously denied as broadly and completely as he could have done by answering this question. And a repetition of that denial would plainly have been of no benefit to the defendant.

There were other exceptions taken to the rulings of the’ court concerning the evidence, but neither of them has been found to stand upon any substantial legal ground. And it is accordingly unnecessary to examine them in detail for the disposition of the case. It is sufficient in conclusion to add that for no reason would the court be justified in set-, ting aside the verdict, or reversing the judgment which has. been recovered, But both the judgment and the order should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  