
    Charlotte Liebert, Plaintiff, v. Michael Hoffman and Louise Hoffman, Defendants.
    (Supreme Court, Rockland Trial Term,
    June, 1907.)
    Undue influence — Actions — Burden of proof and presumptions.
    Gifts — Fraud, mistake, undue influence or incapacity affecting gifts — Evidence — Sufficiency and presumptions.
    It is only where some confidential or fiduciary relation exists between the parties to a gift mter vivos, or where one party is mentally incapacitated, or physically weak, or under the control or influence of the donee, that he, when the gift is attacked, has the burden of explaining the transaction.
    Where, in an action to compel an accounting for $2,000 drawn from a savings bank, the testimony of the plaintiff that she gave one of the defendants her savings bank book with an order for the withdrawal of said amount which he was to return to her, is unsupported by other testimony, while the testimony of said defendant corroborated by five witnesses preponderates in favor of the claim that it was an absolute gift of the money to one of plaintiff’s granddaughters, with whom she was boarding after leaving her son’s home because of his ill-treatment of her, defendants are entitled to judgment upon the merits dismissing the complaint.
    Action to compel an accounting of money drawn from a savings bank. The opinion states the case.
    George A. Wyre, for plaintiff.
    Harvey Dobson, for defendants.
   Tompkins, J.

The burden of making out the cause of action set forth in the complaint rests upon the plaintiff.

She asserts that she gave the defendant Michael Hoffman her bank-book, with an order for the withdrawal from the bank of the sum of $2,000, which he was to return to her, and which she intended to divide equally between her three granddaughters.

The defendants claim that the $2,000 was an absolute gift by the plaintiff to the defendant, Louise Hoffman, one of the plaintiff’s granddaughters.

The plaintiff’s testimony is unsupported by any other testimony, while the testimony of the defendants, with respect to the making of the alleged gift by the plaintiff to Louise Hoffman, is corroborated by the testimony of the witnesses Nicholas Hoffman, Antonio Butterfass, Charles Butterfass, Theresa Sauer, and Herman Coop, all of whom testified, in substance, that, while the plaintiff was living with the defendants, she complained of the manner in which her son Robert, with whom she had formerly lived, had treated her, and of the good treatment and care that she was receiving by the defendants at their home, and that she had given Louise Hoffman the $2,000 in dispute.

It also appears that, after the plaintiff’s husband’s death, she promised to make a present herself, or procure a payment to be made out of her late husband’s estate to the defendant Louise Hoffman, in consideration of her not contesting her grandfather’s will, and in order to make a more equitable distribution of the estate.

The case presents this one question of fact: Was the defendant Michael Hoffman intrusted with the bank-book and authorized to withdraw the $2,000, for and as an agent of the plaintiff, and the money to remain her property; or was there a gift and a complete surrender of the money and all control over it to her granddaughter, Louise Hoffman ?

The preponderance of evidence is strongly in favor of the defendants’ claim, and the circumstances urged by the plaintiff’s counsel in his brief are not sufficient to overcome the weight of that testimony. ¡Nor do I think that the burden of proof is shifted in this case by the defense interposed. While, the law is that a gift inter vivos must be established by satisfactory proof, yet where the gift is attacked the burden of explaining the transaction is only cast upon the donee where some confidential or fiduciary relation existed between the parties to the transaction, or where the one party is mentally incapacitated, or physically weak, or under the control or influence of the one claiming the gift.

Here there was no fiduciary or particularly confidential relation existing. Nor is there any evidence of any physical or mental weakness on plaintiff’s part, or any misrepresentation, coercion, or undue influence exercised by either of the defendants. Indeed, the plaintiff, as a witness, showed a good deal of physical and mental vigor, and clearly demonstrated that she had a mind of her own and would not be likely to be influenced against her will.

She was simply boarding with her granddaughter, having left her son’s home, claiming to have been badly treated by him.

The money was drawn from the bank and taken possession of by the defendants on the ninth day of July. The plaintiff appears to have made no attempt to obtain the money from the defendants, or compel them to account for it, until some time in October of the same year, and after she had left their home and returned to her son Robert’s home.

My conclusion is that the plaintiff has failed to make out the cause of action set forth in the complaint, and that the defendants are entitled to judgment upon the merits, dismissing the complaint, with costs.

Judgment for defendants, dismissing complaint,, with costs.  