In the Matter of the Application of Jeremiah S. Perkins, Attorney in Fact for Mary Carney, and also as Administrator, etc., of Ann McKeever Newman, Deceased, and also as Attorney in Fact for Ada Brady, Sometimes Known as Bridget Brady, and Others, the Only Children and Only Heirs at Law and Next of Kin of Ann McKeever Newman, Deceased, for an Order Directing the Comptroller of the City of New York to Pay to Petitioner, as Said Attorney in Fact, and as Said Administrator, Certain Moneys Deposited to the Credit of the Unknown Next of Kin of Rose Fitzpatrick, Deceased. Comptroller of the City of New York, Appellant; Junius Pendleton Wilson, as Attorney in Fact and Administrator, Respondent

In the Matter of the Application of Jeremiah S. Perkins, Attorney in Fact for Mary Carney, and also as Administrator, etc., of Ann McKeever Newman, Deceased, and also as Attorney in Fact for Ada Brady, Sometimes Known as Bridget Brady, and Others, the Only Children and Only Heirs at Law and Next of Kin of Ann McKeever Newman, Deceased, for an Order Directing the Comptroller of the City of New York to Pay to Petitioner, as Said Attorney in Fact, and as Said Administrator, Certain Moneys Deposited to the Credit of the Unknown Next of Kin of Rose Fitzpatrick, Deceased. Comptroller of the City of New York, Appellant; Junius Pendleton Wilson, as Attorney in Fact and Administrator, Respondent. First Department, July 10, 1916. Decedent’s estate—moneys deposited to credit of unknown next of kin — evidence—relationship of claimants of decedent — when declarations as to pedigree incompetent — proof not establishing kinship. Claimants to moneys deposited in the treasury of the city of New York to the credit of unknown next of kin cannot establish a marriage of one of their ancestors to an ancestor of the deceased owner of the estate by declarations made to them by mothers and grandmothers. Such declarations are competent only in ease the declarant is proved by evidence dehors his own declarations to be a member of the family by blood or affinity which the declarations are intended to affect or concerning which he speaks. Nor is evidence purely hearsay admissible to prove such marriage. Testimony that the decedent had been heard to say that she had cousins having the family name of the claimants is too indefinite to be of substantial value. Evidence examined, and held, insufficient to establish the claimants’ right to the estate. Appeal by the Comptroller of the City of New York from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 27th day of July, 1915, confirming the report of a referee and directing the comptroller to pay to the petitioner $5,244.21 deposited with him as public administrator to the credit of the unknown next of kin of one Rose Fitzpatrick, deceased. Charles J. Nehrbas, for the appellant. Junius Pendleton Wilson, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: Rose Fitzpatrick died intestate in the city of New York on August 27, 1906. Her estate is in the city treasury awaiting proof of ownership. The parties who on this petition claim to be entitled allege themselves to be cousins of Rose Fitzpatrick four generations removed from then common ancestor, one Patrick Cassily. He had a son, John Cassily, who is the ancestor of the claimants, and a daughter, Jane, who, the petitioner asserts, is the ancestor of the decedent. It is admitted that one Rose Donohue married John Fitzpatrick, and was the mother of the decedent, and, to link the families together, the claimants assert that this Rose Donohue was the daughter of Jane Cassily and one Stephen Donohue. • It is at this point that the difficulty appears in the lack of competent evidence to prove that Jane Cassily married Stephen Donohue and had a daughter Rose. To prove this, two of the claimants testified that their mothers and grandmother had told them that Jane Cassily married a Stephen Donohue and had a child Rose. This testimony is incompetent under the rule laid down in the case of Aalholm v. People (211 N. Y. 406) to the effect that declarations are competent only in case the declarant is proved by evidence dehors his own declarations to be a member of the family by blood or affinity which the declarations are “ intended to affect ” or “ concerning which he speaks.” This condition is not met here. The testimony of one Owen Cusack that he had heard that Jane Cassily had married a Stephen Donohue was pure hearsay and incompetent. The testimony of a Mrs. Meehan that she had heard the decedent say that she had cousins named Newman, the family name of some of the claimants, is too indefinite to be of any substantial value. The proof, apart from the incompetent evidence, is clearly insufficient in law, and for the error in the admission of this evidence the judgment must be reversed and the matter remitted to the surrogate for further proof, without costs. Clarke, P. J., McLaughlin, Scott and Page, JJ., concurred. Decree reversed, without costs, and proceeding remitted to surrogate for further action in accordance with opinion.