Jennie Agnes Dickinson v. William M. Hoes.

Dickinson: "This is all I can do to-day." At 7 o'clock that night, on his way to the hospital, John Kealey died.

On the 19th day of April, 1900, the public administrator called upon Mrs. Dickinson and demanded the papers of John Kealey from her. She told him they were her property; the public administrator insisted and took the papers from her, giving her his receipt.

The Colonial Trust Company and the public administrator were then notified in writing that the moneys on deposit were her property and she demanded the same, which being refused, she brought an action in the Supreme Court to recover the moneys. The cause came on for trial and was decided against Mrs. Dickinson upon the ground that the moneys did not belong to John Kealey, so he could not dispose of them until administration upon his mother's estate had been completed and he had been discharged, as the surety company was liable upon his bond until then.

The public administrator was then appointed administrator of both Rose Kealey's and John Kealey's estate, and thereupon the money on deposit was paid over by the Colonial Trust Company to him. Mrs. Dickinson then served notice of claim, and demand of payment, and upon an offer to refer her claim under the statute, the present referee appointed.

George F. Langbein, for the plaintiff.

was

Frank W. Arnold, for defendant, the public administrator.

HON. ROGER A. PRYOR, Referee.-Matter of Van Sloaten v. Dodge (145 N. Y. 327), not cited by counsel, occurs to the referee as possibly fatal to the validity of this proceeding. But in that case the gift was inter vivos, and, taking effect during the lifetime of the decedent, could not constitute a claim against him or his estate. But here is a gift mortis causa, which not being effectual until the death

Jennie Agnes Dickinson v. William M. Hoes.

of the donor, is an apparent asset in the hands of his administrator, and is so claimed by him (Williams v. Guile, 117 N. Y. 343, 348; Matter of Crosby, 46 N. Y. St. Rep. 442, 444).

I conclude that the order of reference is not a nullity, and that I may proceed to determine the matter in controversy (Code Civ. Pro., sec. 2718).

John Kealey being sole distributee of his mother's estate, and no debts existing against it, he had a right to appropriate it without administration (Blood v. Kane, 130 N. Y. 554; Matter of Mullon, 145 N. Y. 104; Barlow v. Myers, 24 Hun, 286, 290; 15 L. R. A. 493, note).

It appears by a preponderance of proof that John Kealey meant to make the gift; that he was capable of forming such intention; that he made the gift in apprehension of death; that he died of the malady with which he was then afflicted; that he perfected the gift by due delivery, and that the donee accepted the gift. That the gift was perfected by the delivery of the receipt and agreement is on adjudged proposition (Elam v. Keen 4 Leigh, Va. 333).

The efficacy of the gift is not impaired by the fact that it was only of the residue of the fund, after payment for the burials (Podmore v. Savings Institution, 48 App. Div. 218; Loucks v. Johnson, 70 Hun, 565).

Nor is the gift invalidated because the concurrence of the surety company was indispensable to the possession of the fund (Gilkinson v. Third Ave. R. R. 47 App. Div. 472; Page v. Lewis 18 L. R. A. 170, 180).

The conclusion is that the judgment must be for the plaintiff.

[There was no appeal from the decision of the referee.] ASCERTAINMENT OF DEBTS.

Section 2718 of the Code of Civil Proceedure was amended in 1893, so that it, with 2717, became 2722 of the present Code, and section 2718, as it now stands, is new to the Code.

Jennie Agnes Dickinson v. William M. Hoes.

See also R. S. 2561-2.

Sections 34, 35, 36, 37, 39. L. 1859, ch.

261. L. 1880, ch. 245. L. 1890, ch. 456.

COSTS. See note, 24 Civ. Pro. 289, 290, and 28 Civ. Pro. 161, 163. DISBURSEMENTS. Allowed. See same case and note.

REFERENCE. This section (2718) now provides that on the entry of an order of reference of a claim against a decedent's estate the proceedings shall become an action in the Supreme Court, and that the reference shall be governed on the question of costs by sections 1835 and 1836 of the Code. This does not change the existing rule that disbursements may be allowed, even though no reference is made to them in these sections. Outhouse v. Odell, 24 Civ. Pro. 289.

UNREASONABLY RESISTED. Where, however, the claim has not been unreasonably resisted or neglected by the defendants, disbursements are allowed, but costs may not be, the plaintiff being entitled, in such case, to the referee's and witnesses' fees and other necessary disbursements. Mulligan v. Cannon, 25 Civ. Pro. 348. Matter of Raab, 47 App. Div. 33.

WHEN COSTS SHALL BE ALLOWED.

Where there is a recovery on a claim which has been rejected by the executor who has failed to file the consent required, costs must be allowed. Carter v. Barnum, 28 Civ. Pro. 161.

STATUS OF CLAIMS.

A judgment recovered against the decedent during his lifetime is not a claim which may be rejected and referred within the contemplation of sections 1822 and 2718 of the Code of Civil Procedure. It is a debt, the validity of which has been established by a court of competent jurisdiction. Section 2743, 72, N. Y. 518. The court has simply to determine to whom it is payable. Matter of Browne, 35 Misc. 362.

LIFE ESTATE under a will is not such a claim as may be referred under section 2718, nor within its contemplation. Matter of Weeden, 37 Misc. 716.

PROOF OF CLAIM.

The requirements as to proof of claim is to prevent imposition upon estates and confers no jurisdiction, nor does it prove the existence of the debt, and is not evidence for this purpose. Osborne v. Parker, 66 App. Div. 277.

The presentation of the claim in compliance with the statute and imposes the duty upon the executor to affirmatively establish the defense. Matter of Rowell, 45 App. Div. 323.

See also cited in above opinion Red. Surr. 5th Ed. 527. Lerche v. Brasher as adm., 104 N. Y. 157; Hicks-Alixanian v. Walton exr., 14 App. Div. 199.

Harry Griffiths, an Infant, v. Metropolitan Street Railway Co.

HARRY GRIFFITHS, AN INFANT, BY HENRY W. GRIFFITHS, GUARDIAN AD LITEM, RESPONDENT, v. METROPOLITAN STREET RAILWAY COMPANY, APPELLANT.

COURT OF APPEALS-MAY, 1902.

§ 834

Testimony of Physician. Construction of Section 834, Code Civil Procedure.

To bring the evidence of a physician within the prohibition of section 834 of the Code, three elements must coincide: 1. The relation of physician and patient must exist. 2. The information must be acquired while attending the patient. 3. The information must be necessary to enable the physician to act in that capacity.

The burden of showing that evidence sought to be excluded is within the prohibition of the section rests upon the party seeking to exclude it.

Defendant's witness, a physician, was at the scene of an accident when the ambulance arrived and rendered first aid to the plaintiff, who was seriously injured. He rode with plaintiff in the ambulance part of the way to the hospital, at which he was an attending physician; but had no other relations with the plaintiff until ten days thereafter, when he called upon plaintiff at the instance of the defendant and had a conversation with him about the details of the accident. This, he testified, was distinct from any treatment as a physician. The witness' evidence of this conversation was, under objection by plaintiff's counsel, excluded. Held error.

(Decided May, 1902.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department reversing

Harry Griffiths, an Infant, v. Metropolitan Street Railway Co.

a judgment dismissing the complaint and reinstating a verdict rendered by a jury.

On the 17th day of April, 1899, the plaintiff, a boy between 7 and 8 years of age, was struck by one of the defendant's northbound cable cars on Columbus avenue, between Ninety-third and Ninety-fourth streets, in the City of New York. This action is brought to recover damages for the injuries he thus received. The accident occurred between 5 and 6 o'clock in the afternoon. The day was clear and bright. The plaintiff lived with his parents at the northwest corner of Columbus avenue and Ninety-third street. Just before the accident he had been sent by his mother on some errands. Having made some purchases at a store on the west side of the avenue, just below Ninetyfourth street, he started to cross the street directly in front of the store. He stood at the curb watching some men at a manhole for a short time, and then proceeded into the street as far as the easterly or "uptown" track of the defendant's road, where he waited for an up car to pass. Then he looked north and south and stepped upon the "up track." While upon the track, and, as he says, waiting for two southbound cars to pass, he was struck by an up-bound car. As a result of this collision one of his arms was fractured and one of his legs was so badly crushed that it had to be amputated just above the ankle.

There was a sharp conflict in the evidence as to the distance between the car and the plaintiff when he stepped upon the track. The plaintiff testified that when he attempted to cross the track there was no up-bound car in sight as far south as the corner of Ninety-third street, which was about 150 feet distant; that he did not see it until it was two or three houses from him; that he then attempted to get off the track, but the car was coming so fast he could not get out of the way in time to avoid the accident. Other witnesses corroborated the plaintiff's story. There was some