
    Matter of the Application of Horace F. Scott, as Administrator, etc., of Annie M. Thorpe (or Scott), Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed April, 1901.)
    Discovert of Property of a Decedent in the. Hands of a Bailee and Subject to Conflicting Claims' — Possession Awarded by Surrogate.
    Where a tin box of a decedent, in the custody of a bailee for hire, is claimed by her administrator and also by her sister, the court of the surrogate, while not having power to try a conflicting claim of title, may award possession; and, where the sister, although not an actual party to a proceeding by tbe administrator to require the bailee to deliver the box to him, has made claim therein, will direct delivery of possession to the administrator as representing the estate of the decedent, leaving the sister to assert in another court her rights as against the administrator.
    ■ Application for a decree requiring tbe Bank of New Amsterdam to deliver to said administrator possession of certain property of decedent.
    Elmer S. White, for administrator; M. A. Lesser, for claimant.
   TnoMAs, S'.

— Tbe respondent, tbe Bank of New Amsterdam, does not claim any title to a lien upon tbe tin box which, with its contents, was deposited by tbe decedent in its safe deposit vaults. As to her, it was a mere bailee for hire, owing a duty to deliver tbe property to her or her legal representative. Tbe petitioner is tbe administrator of tbe estate of tbe decedent, duly appointed by this court. A sister of tbe decedent, claiming to have received a gift of tbe contents of tbe 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 tbe part of tbe respondent. Much of this evidence was incompetent and inadmissible under section 829, Code Civil Procedure; it is, all of it, open to grave suspicion, and is contradicted by tbe acts and letters of tbe claimant. It is not Avitbin tbe province of this court to determine tbe conflicting claim of title, but it may adjudge, as between tbe parties to tbe proceeding, a right to possession. Matter of Curry, 25 Hun, 322; Matter of Knittel, 5 Dem. 372; Matter of Stewart, 77 Hun, 564. Tbe written order of tbe decedent in which she requests tbe 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things to her sister does not import a transfer of title, and, as an authority to her sister to act as her agent, it was revoked by tbe death of the decedent. Tbe 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 of the property to the petitioner.

Decreed accordingly.  