This action was brought to recover a balance due to the plaintiff’s intestate, Annie Podmore, which, at the time of her death, she had on deposit with the defendant under the name of Annie Col-well. The action was originally brought by John Podmore as administrator, but subsequent to its commencement he died and the plaintiff was substituted as administratrix de bonis non. The • answer, among other defenses* alleged a gift causa mortis by Annie Podmore to one Bridget Peilly and payment by the bank to her of the amount for which a recovery was sought.
At the trial the facts were undisputed that, after the death of Mrs Podmore, Mrs. Peilly presented the passbook which the defendant had issued to Mrs. Podmore and demanded payment of the- money represented thereby, and that after- some negotiations such sum was paid to her, but it was insisted on the part of the plaintiff that there was no legal justification for this payment. Bearing upon this claim,, at the conclusion of the trial, two questions were submitted to the jury: (1) Whether there was a gift of the passbook 'and money represented thereby to. Mrs; Peilly; and (2) whether the evidence established the identity of the book in question as one of those- given. The jury found for the plaintiff and defendant has appealed.
Upon the subject of the gift the defendant read, under a stipu-" *508lation, the testimony given by a Mrs. Catherine Hurst in .an action in which the amount represented by another passbook was involved. She there testified in substance that she was acquainted with Mrs: Reilly and had been with Mrs. Colwell in her lifetime ; that on the 22d of November, 1897, she was at Mrs. Reilly’s house and there saw Mrs. Colwell, who was then very sick; that Mrs. Reilly, assisted by herself and a'Mrs. Madden, changed Mrs. Colwell’s clothes, and as they did so they found secreted about her waist a bag in which there were a number of bank books; that Mrs. Reilly then said to Mrs. Colwell: “ Now you are very sick, and she replied, ‘yes, I am going to die,’ and she then handed Mrs. Reilly the bank books which were in the bag, at the same time saying; ‘ Bury me out of - this and whatever is left is yours.’ ” The statement thus made by Mrs. Hurst was fully corroborated by a witness produced at the trial—:Mrs. Madden — who stated that she-was present On the occasion referred to by Mrs. Hurst and heard the conversation related by her; that she saw the bag and saw the intestate take the bank books from it and give them to Mrs. Reilly; she repeated the- conversation which then took place between the deceased and Mrs. Reilly as follows: “We all knew.she was sick. Mrs. Reilly said, ‘You are pretty sick, auntie,’ and she said, ‘Yes.’ -She sat up and she Says, ‘Yes, I am pretty sick.’ She says, ‘I think I am dying.’ So she says, ‘ This is all I have. I give you this. If I die, bury me out of this -and what is left is yours.’ As she made that statement she handed the bundle of books-to Mrs. Reilly. Mrs. Hurst was present in the same room and she could hear what; was said.” These two witnesses were seemingly disinterested. Their testimony was uncontradicted, and there is nothing which tends in the slightest degree to render the same suspicious or to indicate that their statements were not true. Assuming, therefore, that the book in question was one of those then and there delivered by Mrs. Colwell to Mrs. Reilly, I think what was said in connection with the delivery constituted a valid gift causa mortis. This was the view entertained by this court in Podmore v. South Brooklyn Savings Institution (48 App. Div. 218), where Barrett, J., said: “There was no reservation br limitation attached to the gift. It. was absolute and uriconditional. It has been repeatedly held, both in England and in this country, that Words of similar import to those here used, *5091 take these books and bury me out of them, and what is left out of it is yours,’ do not limit or place a condition upon the gift. They simply impose upon the donee a trust duty to pay the expenses of the donor’s funeral. (Hills v. Hills, 8 M. & W. 401; Bouts v. Ellis, 17 Beav. 121; Blount v. Burrow, 4 Bro. Ch. C. 72; Clough v. Clough, 117 Mass. 83; Pierce v. Boston Savings Bank, 129 id. 425; Curtis v. Portland Savings Bank, 77 Maine, 151.)”
On the subject of the identification of the book, the evidence is equally satisfactory. Mrs. Madden testified that after the books were taken from the bag and delivered by the deceased to Mrs. Reilly, she put them in a chiffonnier top drawer and two days later she saw Mrs. Reilly take the books frorh the drawer where she put them and give them to a Mr. Berg; that Mr. Berg gave a receipt for the books, which specified each book and its number; that Mrs. Reilly being unable to read or write, the witness checked off the books specified in the receipt and that there was a Dime Savings Bank book in the list; that this book, with the others, was taken away by Mr. Berg. Mrs. Reilly testified, without objection, that on the twenty-second of November (this was the day Mrs. Madden and Mrs. Hurst testified the books were delivered to Mrs. Reilly) she put the “ bundle of books ” in the drawer and did not take them therefrom until the twenty-fourth, when she delivered them to Mr. Berg, and he gave her a receipt for them, which she had lost. Mr. Berg testified that he was an attorney at law, and on the twenty-fourth of November, in response to a communication from Mrs. Reilly, he called upon her and she then took from the top drawer of a chiffonnier a bundle of bank books and delivered them to him; that he examined them and gave a receipt for them, in which he specified each book and its number; that one of the books was the one in question ; that its number was 204,583; that this book was delivered by him to the defendant and he received the money represented by it. He was corroborated by some of the officers of the bank as to the delivery of the book and payment of the money. The bank was unable to produce the original book, but the fact that the same was delivered to it by Berg was not disputed.
We have, therefore, taking all the testimony together, evidence satisfactorily identifying the book issued by the defendant to Annie Podmore. under the name of Annie Colwell, as one of the books *510delivered by ier to Mrs. Reilly on tie twenty-second of November. If I am correct as to the force tó be 'accorded to the evidence above alluded to, then we have .a valid gift ccmsa mortis of the book in question to Mrs. Reilly, and the defendant was not only justified, hut was legally obligated to pay to her the money represented by the book, and could not be thereafter compelled to again pay the same to Mrs. Colwell’s estate.
The finding of the jury is. against the weight of evidence, and for that reason the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. '
Patterson,, O’Brien and Laughlin, JJ., concurred; "Van Brunt, P. J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.