
    Daniel Tyrrel, Respondent, v. Emigrant Industrial Savings Bank, Appellant.
    
      Savings bank deposit—to establish a gift thereof there must be a delivery divesting the donor’s possession and title.
    
    In an action brought against a savings bank to recover a sum of money deposited with such bank by one John Sweeny, the plaintiff testified that Sweeny had deposited some arrears of pension moneys in the defendant savings bank and in another savings bank, and that on the 31st day of October, 1891, he borrowed ten dollars of the plaintiff and went out with the plaintiff’s son and one Clark to get a drink; that when he came back he said to the plaintiff: “ ‘ That money is a curse to me; I never can keep sober as long as I have it; you keep it. * * * Take it and keep it.’ * * * He said the time he gave me that book the money in it was mine, ‘ Tours to keep.’ I took the books and put them in a drawer of my desk. I says, ‘ Thank you, Doctor.’ ”
    He further testified to a previous conversation with Sweeny, in which the latter said that “if anything ever happened to him he wanted me to have the money; that I had always been his friend, and he had no one else to give it to.” A few days after delivering the bank books to the plaintiff Sweeny disappeared and was never heard from thereafter. The plaintiff made no claim against the bank for seven years after Sweeny’s disappearance.
    The plaintiff’s son, in testifying to the alleged gift, stated that Sweeny said, “ Boss, here is two bank books; that money in the bank belongs to- you; I want to give it to you; this money has been an absolute curse to me,” and that he handed the bank books to the plaintiff.
    The witness Clark, referred to by the plaintiff in his testimony, testified that at the time in question Sweeny handed two bank books to the plaintiff, saying, “Here, use these two bankbooks that have been a curse tome ever since I have had them, for I cannot keep sober, and whatever is in the banks, these books is yours if anything happens to me.”
    
      Held, that it was error for the court to refuse to charge that “if Sweeny at the time of the alleged gift said that Tyrrel (the plaintiff) was to have the money if anything happened to him, that the jury should find for the defendant.”
    In order to establish a valid gift a delivery of the subject of the gift to the donee or to some person for him, divesting the donor of possession and title to the gift, must be shown.
    Appeal by the defendant, the Emigrant Industrial Savings Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Richard O' Gorman, for the appellant.
    
      Theodore Prince, for the respondent.
   Ingraham, J.:

The action was brought to recover from a savings bank a sum of money deposited with the defendant by one John Sweeny. The complaint alleges that “ on the 31st day of October, 1891, in consideration of certain monies given by plaintiff to said John Sweeny and of his then indebtedness to and friendship for plaintiff, he, said John Sweeny, made to plaintiff a gift of the said money then on deposit, being a portion of the money so deposited by him in said bank, and at the same time delivered to plaintiff the said bank or pass book, No. 272,115, as evidence of said gift, which gift plaintiff accepted, and which book plaintiff has ever since continuously held and kept, and still has, holds and keeps as evidence of the gift and money aforesaid; ” and the complaint demands judgment against the defendant for the balance due on said deposit.

Upon the trial the plaintiff was called as witness and testified that Sweeny, the depositor, obtained from the government a pension and received at that time a sum of money for arrears of pension which he deposited in two savings banks, one of which was the defendant; that Sweeny came to the plaintiff on the 31st day of October, 1891, borrowed ten dollars, went out with the plaintiff’s son and one Clark to get a drink and came back to the plaintiff and said: “ ‘ That money is a curse to me; I never can keep sober as long as I have it; you keep it. * * * Take it and keep it.’ * * * He said the time he gave me that book the money in it was mine, ‘ Yours to keep.’ I took the books and put them in a drawer of my desk. I says, £ Thank you, Doctor.’ ” He further testified to a previous conversation with Sweeny who said that “if anything ever happened to him he wanted me to have the money; that I had always been his friend, and he had no one else to give it to.” Upon cross-examination the plaintiff testified that the con versation between himself and Sweeny was as follows : “He came in my office and says: £ Here, boss, here is my two bank books; as long as I have got them and I can draw money I never can keep sober. Take it. That money is yours. I don’t want it. It is only a curse to me.’ He said he would try to live off his pension. He said I had always been a good friend to him and the only friend he did have.” A few days after, Sweeny disappeared and has never been heard from since; for seven years he made no claim upon the bank for the money; in November, 1895, in proceedings against him as a judgment debtor he had testified: “ I keep no bank account. The last time I had a bank account was in 1867. I kept an account in the 9th National Bank in the City of New York. I discontinued it about in 1868. I have no savings bank account.” The plaintiff’s son was also called and testified that he was present at this conversation ; that after the plaintiff loaned Sweeny ten dollars, he, Sweeny, Unger and Clark went to a saloon and had a drink; that they returned to the plaintiff’s place of business; Sweeny pulled out two bank books and said: Boss, here is two bank books; that money in the bank belongs to you; I want to give it to you ; this money has been an absolute curse to me,” and that he handed the bank books to the plaintiff. Clark was called as a witness and testified that he was present at that interview; that when they returned from the saloon he saw Sweeny take two bank books out of his pocket and hand them to the plaintiff, saying: Here, use these two bank books that have been a curse to me ever since I have had them, for I cannot keep sober, and whatever is in the banks, these books is yours if anything happens to me.” The witness also testified that Sweeny had before made several statements to him, saying, if anything happened to him, he wanted the plaintiff to have everything in the banks. The case was tried in April, 1902, and these witnesses testified to a conversation between the plaintiff and Sweeny over ten years prior to the trial. The defendant offered no testimony and the court submitted the question to the jury as to whether there was a ~bona fide gift. After the court had charged the jury counsel for the. defendant requested the court to charge that if Sweeny at the time of the alleged gift said that Tyrrel was to have the money if anything happened to him, that the jury should find for the defendant.” This request the court declined, to which the defendant excepted, the court saying, “ It is for the jury here to say whether there was a present gift under which the dominion' and control of this property was intended to be transferred from John Sweeny to Daniel Tyrrel, the plaintiff in this action.” I think the refusal to charge this request was error which requires a reversal of the judgment. The rule is elementary that “ to establish a valid gift, a delivery of the subject of the gift to the donee or to some person for him, so as to divest the possession and title of the donor, must be shown.” (Young v. Young, 80 N. Y. 430.) “An absolute gift requires a renunciation by the donor, and an acquisition by the donee of all interest in and title to the subject of the gift. A portion cannot be retained and the remainder disposed of.” ( Curry v. Powers, 70 N. Y. 217.) Here Clark, one of the witnesses to the transaction, swore that Sweeny, delivering these bank books to the plaintiff, said: “ Here, use these two bank books that have been a curse to me ever since I have had them, for I cannot keep sober, and whatever is in the banks, these books is yours if anything happens to me.” If this was the transaction, and the surrounding circumstances and the condition of the parties strongly tend to corroborate it, it is clear that there was no absolute gift of the money in the bank, but the intention was for the plaintiff to keep the bank books so that in the event of Sweeny’s death he would be entitled to the moneys represented by them. There would be, therefore, no present intention to part with the absolute title to the money represented by the bank books necessary to make a valid gift. To the money represented by these bank books the plaintiff concededly had no title. It belonged to Sweeny. To sustain this action there must be convincing proof that what Sweeny intended at the time he delivered the bank books to the plaintiff was that the absolute title to the money on deposit should vest in the plaintiff and that Sweeny intended to and did part with all dominion and title to it by a transfer of it to the plaintiff. If his intention was to give these books in the plaintiff’s keeping so that upon his death what was left in the bank should be the property of the plaintiff, there was not a valid gift that would entitle the plaintiff to recover; and I think the defendant was entitled to have the jury instructed that, if that was the intention of Sweeny at the time of the delivery of the bank books, the defendant was entitled to a verdict. I am also of the opinion that upon this testimony the verdict is against the weight of evidence. The gift depends upon a •conversation happening over ten years before the trial, of which no record was kept. Sweeny was evidently quite dissipated and was rapidly using up this money in dissipation. The plaintiff had tried to induce him not to draw the money from the bank, but to live upon his pension. He stated at the time he delivered the books to the plaintiff that that was his intention, and then he characterized the delivery as a gift of the bank books. It is quite easy to see that a slight change in the words used would have materially changed the evidence of Sweeny’s intention. The probabilities are against his intending absolutely to part with the title to the money, and the plaintiff and his son who testified as to these words were interested witnesses; then the conduct of the plaintiff after this transaction and after Sweeny’s disappearance in failing for upwards of seven years to make any claim upon the bank for the money and in testifying positively that he had no savings bank accounts in supplementary proceedings is strong, if not conclusive, evidence that he did not understand that Sweeny by this transaction had intended to transfer an absolute title to this money to him. If Clark’s version of the transaction is true, this would account for Sweeny’s failure to press his demand for the money, and he could justly testify he was not the absolute owner of these bank books until Sweeny’s death had been established. I do not think that we have here such clear and convincing testimony as would justify the jury in finding that Sweeny intended to divest himself of this money and vest it in the plaintiff.

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

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  