
    Charles B. Harris, as Temporary Administrator of the Estate of Josef Bielat, Respondent, v. The State Bank, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Evidence — Admissions — By representatives — By executors and administrators— Fact or time of death of intestate.
    Neither the fact of the death of an intestate nor the time thereof may be proved by his administrator’s declaration out of court.
    Where, in an action by an administrator to recover a deposit in bank made by his intestate, the only evidence other than testimony that letters testamentary were granted to plaintiff, is a pass-book of the account of deceased with defendant, produced by it under a subpoena duces tecum, from which it appears that deceased had deposited the amount sued for and had afterwards withdrawn it, and the date of his death is not shown, the complaint is properly dismissed.
    
      An admission in the answer that deceased during his lifetime had deposited the amount sued for with defendant cannot be construed as an admission that at the time of his death such sum was still on deposit, where the answer expressly denies that any sum was so held by defendant at the time of the death of the deceased, and the proof shows that said sum had been withdrawn.
    Appeal from an order of the City Court of the city of Hew York, setting aside the dismissal of plaintiff’s complaint and granting a new trial.
    Steuer & Hoffman (Charles L. Hoffman and Henry A. Freedman of counsel), for appellant.
    S. Ellerstein, for respondent.
   Greenbaum, J.

The complaint alleges the death of one Josef Bielat, on or about the 29th day of March, 1905 ; that letters of temporary administration by the surrogate of Kings county, on the estate of said Bielat, were issued, on or about the 13th day of June, 1905, to plaintiff, who duly qualified as such administrator, and “that prior to the death of said Josef Bielat, the said Josef Bielat deposited with the said defendant the sum of three hundred dollars and, at the time of his death, the said Josef Bielat had on deposit with the defendant the sum of three hundred dollars, and that the said sum of three hundred dollars had not been withdrawn from the said bank by the said Josef Bielat during his lifetime.”

The complaint also alleges the incorporation of the defendant as a banking corporation and the demand for the payment of the said sum of three hundred dollars.

The answer admits the incorporation of the hank by not denying it and denies every other allegation of the complaint, except the allegation “that, prior to the death of the said Josef Bielat, deceased, the said Josef Bielat deposited with said defendant, the sum of three hundred dollars.”

Hpon the trial, there was no affirmative proof of the death of Josef Bielat, unless that fact may be inferred from the granting of letters testamentary upon his estate.

There was no proof as to the date upon which Josef Bielat died. The only testimony tendered which refers to the timé of Josef Bielat’s death was that, when the administrator made demand upon an official of the bank for the three bun-' dred dollars, he stated that Josef Bielat died on March 29, 1905. This declaration, out of court, by the administrator, has no probative force as .evidence of death or time of death.

In addition to testimony that letters testamentary were issued to plaintiff, the only other evidence adduced was a pass book of the account of the deceased with defendant, produced by the defendant under a subpoena duces tecum served upon it, from which it appeared that the deceased had deposited with defendant, on January 31, 1905, the sum of $300 and had withdrawn said sum on March 30, 1905.

As there was a complete failure of proof as to the date of the death of Josef Bielat, there was no evidence that, at the time of his death, there was any money belonging to the deceased on deposit with defendant.

The admission in the answer that, during his lifetime, the deceased had deposited said sum with defendant cannot be construed as an admission that, at the time of his death, said sum was still on deposit, accompanied as it was with an express denial that any sum was so held at the time of Josef Bielat’s death and of the proof from the pass book that, on March 30, 1905, said sum was withdrawn.

The cases relied on by plaintiff as to the affirmative duty of defendant to prove a rightful payment, to the one entitled thereto, after the death of a depositor, have no application to the facts here disclosed.

Had it been shown that Josef Bielat died on March 29, 1905, a prima facie case might have been presented in favor of plaintiff.

The complaint was properly dismissed, and the order setting aside the dismissal and granting a new trial was erroneous.

Order reversed and motion denied, with costs to appellant in this court and ten dollars costs in the court below.

Scott and Giegerich, JJ., concur.

Order reversed and motion denied, with costs to appellant in this court and ten dollars costs in court below.  