The general disposition of the Courts is to sustain the referee in his finding of facts. By section 272 of the Code, power is given to the G-eneral Term to review the finding of a referee, and in case of reversal upon the facts, the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in this Court. In examining the evidence a majority of the judges of the Supreme Court took a different view of the facts and of the law from that taken by the referee, while a minority concurred with him in both respects. The question is now before us, and in the same manner, and as an original question, that it was before the General Term. In the language of the Code the “ question whether the judgment should have been reversed ” is the one before us. This is not precisely the same question as if we are inquired of whether we should have found the same facts, and have determined the law in the same manner. It is rather, are we so certain that the referee was in error upon the facts, that we will assume to reverse his judgment? If the case is doubtful his conclusions should not be reversed. If, upon reading the evidence, this Court should be of the opinion that the conclusion might well have been either way, then the fact that the referee saw the witnesses, heard them testify, and had the nameless opportunities *337 of judging, of their character that personal acquaintance can only give, should induce us to .defer to his judgment. If, upon the other-..hand, .we are clearly of the-opinion that he erred in deciding the facts, we are hound' to “ reverse his .judgment ”. (Ball v. Loomis, 29 N. Y. 412; Peterson v. Rawson, 34 N. Y. 370).
After a careful reading of the case, I am inclined to concur in the view of the referee,, and. of the judge who delivered the. dissenting opinion in the Court below. It is clear, upon the authorities cited, that choses in action, such as bonds, and mortgages, and promissory notes- not endorsed, may all be transferred by. delivery only, as a donatio eausá mortis (Duffield v. Elwes, 1 Bligh R., N. S., 497, 542; Brown v. Brown, 18 Cont. R. 410; Bedell v. Carll, 33 N. Y. R. 581). As in the- case of a gift inter vivos, the transfer of such a security would be accompanied with some inconvenience. .More and different evidence would be re-, quired, -in enforcing .the claim, than where a: specific chattel had been delivered, or an endorsement or a formal written .transfer of the security had been, made. Still, it is. quite clear, that in either case, in. apprehension of death, -or among the living, the gift of a mortgage or unendorsed note may be effected by a simple delivery of the security.
The evidence of Miss "Westerlo establishes satisfactorily that, there was an actual. delivery to her of the certificate as a gift from Mrs. Clinton, in apprehension of death. . She desired Miss "Westerlo to go to her closet, and look in the pocket of a.particular dress, in which she would find a roll of paper, which she reqnested to be brought to-her. The parcel, wrapped in a piece of papei", and pinned together,- was. brought to her (Mrs. Clinton),. who proceeded to open it. It contained the certificate in -question, and a small roll of bills, amounting to §600. Mrs. Clinton counted the-.money, and read over the certificate. - She then rolled the bills together in the same paper with the certificate, and handed-the whole to Miss Westerlo, saying : “I give this to-you; this is for. yourself; no one knows anything about it, and I do not wish to tell of it.” She..then told Miss Westerlo to put away the parcel where she had found it, as that was the safest place,-desired *338 ber to lock the door, and place some article of furniture against it. Mrs. Clinton at the same time told Miss Westerlo that she had also remembered her in her will, and indulged in strong expressions of love and affection. Miss Westerlo placed the parcel in the pocket, as desired. The referee held this to be a completed delivery, and that Mrs. Clinton did not expect or intend to retain any control over the possession of the money or security after that date. I find no occasion to reverse his judgment on this point; and I see nothing in the manner of detailing the transaction by Miss Westerlo afterward that interferes with this view. She was frank, ingenuous ; stated the facts as they occurred, with her doubts as to their effect, and asking the advice of others who were supposed to be better informed than herself. The money and the security stand upon the same ground. Both are susceptible of being presented as a gift by delivery. They were both in the same envelope, and the same words were applied in giving each. Handing her the paper containing both the money and the certificate, Mrs. Clinton says : “I give this to you; this is for yourself.” It is impossible to apply any rule which would make this a valid gift as to the money, and invalid as to the certificate. They must stand or fall together. I think it was good as to both.
If the view I have taken is the correct one, the certificate was given to Mr. DeWitt, by Miss Westerlo, upon a mutual misunderstanding of her rights; he supposing and advising her that the had no title to the certificate, but that the same belonged to the estate of Mrs. Clinton; and she, in reliance upon such advice, giving to him the certificate upon which he afterward received the money.
The referee finds that Mr. De Witt acted in entire good faith; in which conclusion I concur entirely. Mr. De Witt had not qualified as executor, nor, according to the ordinary course of events, had the will been proved when he received the certificate. If it has been entered in his accounts, the judgment of this Court that it was so received and entered by mistake, will be a sufficient warrant for its repayment by him. He received, him *339 self, under the circumstances mentioned, the property of Miss Westerlo, in the form of a certificate. Its value should now be restored to the Plain tiff.
I am for reversal of General Term, and that judgment of referee be affirmed.
Judgment accordingly.
JOEL TIFFANY, State Eeporter.