
    Matter of the Application of Horace F. Scott, as Administrator, Etc., of Annie M. Thorpe (or Scott), Deceased.
    (Surrogate’s Court, New York County,
    April, 1901.)
    Discovery of property of a decedent in the hands of a bailee and sub-' ject 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 the 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 the Bank of Hew Amsterdam to deliver to said administrator possession of certain property of decedent.
    Elmer S. White, for administrator. '
    M. A. Lesser, for claimant.
   Thomas, S.

The respondent, the Bank of Hew 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 Civil Procedure; 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 claim of title, but it may adjudge, as between the parties to the proceeding, a right to possession. Matter of Curry, 25 Hun, 322; Matter of Knittel, 5 Dem. 372; Matter of Stewart, 77 Hun, 564. 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things to her sister does not import a transfer of title, and, as an authority to her sister to act as her agent, it was revoked by the death of the decedent.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 of -the property to the petitioner.

Decreed accordingly.  