Toni Scheps, Appellant, v. The Bowery Savings Bank and Mary Herman, as Administratrix, etc., of Mordchai Flamendorf, Sometimes Known as Markus Flamendorf, Deceased, Respondents

Toni Scheps, Appellant, v. The Bowery Savings Bank and Mary Herman, as Administratrix, etc., of Mordchai Flamendorf, Sometimes Known as Markus Flamendorf, Deceased, Respondents. Mortis causa gift of a savings bank deposit — declarations of the decedent as to his-purpose in delivering the book to the claimant are incompetent. Where, in an action to determine the title to a savings bankbook and the deposit, represented thereby, the plaintiff claims under an alleged gift causa mortisfrom the depositor and proves the delivery of the bank book to her by the. depositor and her possession, of such book until the death of the depositor, which occurred in a hospital about six weeks thereafter,, it is improper to-allow the defendant to prove declarations made by the decedent after he had delivered possession of the book, tending to prove that he still claimed to own it, and that he had parted with the possession thereof only in order to procure, cheaper board at the hospital than he would have been able to obtain with the. book in his possession. Such evidence is inadmissible for the reason that the declarations of a grantor of real estate or of a donor or assignor of personal property, made after a deed, gift, or sale, áre incompetent and ineffective for the purpose of defeating the claim; or title of the grantee, donee or assignee. Appeal by the plaintiff, Toni Scheps, from a judgment of the-Supreme Court in favor of the defendant, Mary Herman, as administratrix, etc., of Mordchai Flamendorf; deceased, entered in the-office of the clerk of the county of Kings on the 10th day of' December, 1903, upon the decision of the court rendered after atrial at the Kings County Special Term, certain questions of fact, having previously been submitted to a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office, on the 19 th day of December, 1903, denying the plain tiffis motion, for a new trial made upon the minutes. A. B.. Bohleimer, for the appellant. George L. Robinson, for the respondents. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The issue between the parties to this appeal relates to the title to-a savings bank boók and the money represented by it on deposit-with the defendant The Bowery Savings Bank. The appellant. claimed under an alleged gift causa mortis, and proved that the book was delivered to her by the deceased on February 7, 1903, She undoubtedly retained possession of it until after the death- of the deceased, which occurred in a hospital on March 26, 1903. The respondent claims as next of kin of the deceased. The question whether a. gift had been made to the appellant was submitted to the jury by the learned trial justice and answered in the negative, and the finding of the jury was adopted by the court. The main evidence, however, offered by the respondent in order to rebut the prima facie case established by the appellant, consisted of declarations made by the deceased after he had delivered possession of the boob, tending to prove that he still claimed to own it, and that he had only parted with the possession in order to procure cheaper board at the hospital than he would have been able to do with the book in his possession. The reception of this evidence was error, as it is well settled that the declarations of a grantor of real estate or a donor or assignor of personal property, made after a deed, gift or sale, are incompetent and ineffective for the purpose of defeating the claim or title of the grantee, donee of assignee. (Brown v. Mailler, 12 N. Y. 118; Van Gelder v. Van Gelder, 81 id. 625; Williams v. Williams, 142 id. 156; Lent v. Shear, 160 id. 462; Wangner v. Grimm, 169 id. 421; Van Arsdale v. Buck, 82 App. Div.. 383.) Even assuming that the verdict of the jury is to be regarded as advisory and not controlling, we cannot but believe that the finding of the learned trial court was influenced by the improper evidence, and that had it been disregarded a preponderance of the competent evidence might have been found to be in the appellant’s favor. The judgment and order should be reversed. All concurred. Judgment and order reversed and new trial granted, costs to abide the event.