
    (34 Misc. Rep. 446.)
    In re SCOTT.
    (Surrogate’s Court, New York County.
    April, 1901.)
    Assets of Decedent.
    Where a bank, without any claim to a lien thereon, has in its possession, in a safe-deposit vault, a tin box of the decedent, which was claimed by the administrator and also a sister of the decedent, the surrogate court may award possession thereof to the administrator, leaving the sister to assert her rights against the administrator in another court.
    Application of Horace F. Scott, as administrator of Annie M. Thorpe (or Scott), for a decree requiring the Bank of New Amsterdam to deliver to him certain property alleged to be that of the decedent. Decree for plaintiff.
    Elmer S. White, for administrator.
    M. A. Lesser, for claimant.
   THOMAS, S.

The respondent, the Bank of New Amsterdam, does not claim any title to a lien upon the tin box which, with its contents, was deposited by the decedent in its safe-deposit vaults. As to her, it was a mere bailee for hire, owing a duty to deliver the property to her or her legal representative. The petitioner is the administrator of the estate of the decedent, duly appointed by this court. A sister of the decedent, claiming to have received a gift of the contents of the box, makes an adverse claim; and, though she is not a party to this proceeding, her evidence and that of her witnesses has been received as evidence on the part of the respondent. Much of this evidence was incompetent and inadmissible under section 829, Code Civ. Proc. It is all of it open to grave suspicion, and is contradicted by the acts and letters of the claimant. It is not within the province of this court to determine the conflicting claims of title, but it may adjudge, as between the parties to the proceeding, a right to possession. In re Curry’s Estate, 25 Hun, 322; In re Knittel, 5 Dem. Sur. 372; In re Stewart, 77 Hun, 564, 28 N. Y. Supp. 1048. The written order of the decedent, in which she requests the respondent to give ■“my” (her) things to her sister, does not import a transfer of title; and, as an authority to her sister to act as her agent, it was revoked by the death of the decedent. The petitioner represents the decedent, and is entitled to all of the rights which the decedent would now have. One of those rights,' as against the respondent, is the possession of this box, with its contents. The sister may assert such rights as she may have against the administrator by an action in another court. A decree will be made awarding possession oí the property to the petitioner.

Decreed accordingly.  