This action was brought to recover the sum of $2,135, originally on deposit with the Citizens’ Savings Bank in the name and to the •credit of Samuel Levy, deceased. The theory of the action, according to the allegations of the complaint, is that the deposit was assigned to the plaintiff by Levy just previous to his death, in consideration of an existing indebtedness, of attendance during illness, *422and for other valuable considerations. In support of this theory of -assignment of the bank deposit, there was introduced in evidence a memorandum contained in an account book kept by the deceased, which, as alleged, was made some- time before his death, as follows:
“In the -month of February for that what* Shepsel Plasterstein has served me during my sickness, and for that what* I owed him for board and for books, I give to Shepsel Plasterstein all my money which is in the Citizens’ Savings Bank, and what in that book is written down.
“ SAMUEL LEVY.”
The plaintiff does not claim to have seen this writing until after Levy’s death, although he testified that on the evening previous thereto the deceased gave him the account book in which the memorandum was written, together with the bank book. It must be concluded from the wording of this memorandum that it was in no sense an assignment, but that it was made and intended as a testamentary disposition. As such, however, it is not good, for it does not comply with the formalities required by law, and, therefore, if of any importance, it may only be accepted as evidence of intention to make not a present gift, but a gift to take effect after-death.
This was the view taken upon the trial by the learned judge below, who pointed out the defect in the ■ claim made in the complaint that the deceased had assigned the deposit to the plaintiff. The court, however, permitted the action to proceed without any amendment of the pleadings, for the purpose of determining whether, as the plaintiff’s counsel was endeavoring to show, title could be maintained as to a gift causa mortis ; but the complaint was finally dismissed on the ground that the plaintiff had not sustained the burden placed on him of establishing such a gift by evidence that was “ clear and convincing, strong and satisfactory.” (Farian v.Wiegel, 76 Hun, 462.) The plaintiff took exception to this conclusion, and now insists, as he did below, that tlie cause of action was abundantly established. The correctness of this contention necessarily depends upon the force and effect of the evidence adduced, *423and, for the purposes of this opinion, a summary of the proof presented will he sufficient.
It appears that on a Tuesday in February, 1897, between two and three o’clock in the morning, Samuel Levy, who was then boarding with the plaintiff, died. According to the plaintiff’s version, the deceased, on the previous night, had given to him a bank book and an account book, with the understanding that out of the fund represented in the former he should pay the expenses of burial, provide for prayers to be said and erect a monument or tombstone over the grave and that the remainder of the deposit should belong to him. This testimony of the plaintiff and his witnesses was weakened by that of the defendants’, from which it appeared that on the day following the alleged transfer, the plaintiff called at the house of Bertha Sarasohn and said that he knew nothing about the property of the deceased, and that there was nothing on his person but a few pennies ; and that when told to return and make further search, he went away and came again, later in the day, saying that he had found some books and papers, which he thereupon handed to Mrs. Sarasohn, asking her for some money for his trouble, and remarking that the books "would be for the brother of Levy.
The plaintiff’s failure then and there to assert that he claimed title to the bank book as a gift made to him by the deceased, and his surrender of the same to Mrs. Sarasohn with the words mentioned, if the defendants’ "witnesses are to be credited, are quite inconsistent with his attitude and that of his witnesses on the trial. We have not overlooked the plaintiff’s testimony that his object in delivering the books to Mrs. Sarasohn was to secure a loan, and that the books and other papers were left as a pledge; but he does not testify that he asserted at that time a title to the bank book by gift.
Upon the trial, then, as in his complaint, the plaintiff sought to sustain his title, not by reason of a gift, but on the theory, as already pointed out, of an assignment. The memorandum is undoubtedly strong corroborative evidence of intention on the part of Levy to give the plaintiff the benefit of some or all of the money in the bank after, his death, and would have been entitled to great consideration in support of such a claim had that from the outset been consistently asserted and substantiated by other satis*424factory evidence. But as the complaint alleged that the bank book and the moneys represented thereby had been assigned to the plaintiff, and this allegation was not sustained, and no motion was made to amend the pleadings or conform them to the proof, the court might very properly have dismissed the complaint. The court, however, on the theory of a gift causa mortis, further considered the merits of the action without any change being made in the complaint; and it appearing that the evidence of such a gift was conflicting and contradictory, it was entirely within the province of the court to pass upon the credibility of the witnesses in determining whether any title was so established. In his conclusion the learned trial judge had in mind the rule of law so often formulated, that, where it is sought to divert the money or property of a deceased person from his relatives or next of kin, the stranger thus seeking to obtain benefit must establish his right by clear and convincing proof. When we consider the character of the witnesses and their relation to the parties, we must conclude that the evidence is as consistent with the claim that the gift was not made as with the claim that it was made; and the many contradictions in the testimony raise the suspicion that no gift was actually made, but that an examination of the account book after Levy’s death disclosed the memorandum, which, being favorable to the plaintiff, suggested to him the idea that, with it as a basis, a claim or right of some kind could be maintained. From a perusal of the record, we are unable to conclude that the proof adduced, or the character of the plaintiff’s witnesses, was such that the trial judge was bound to be satisfied that the plaintiff had made out.a strong and conclusive case.
We think, therefore, that the judgment must be affirmed, with costs.
Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.
Judgment affirmed, with costs.
Sic.