Hyperlawhypertext legal databasebeta Podmore v. Seamen's Bank for Savings. 71 N.Y.S. 1026

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Podmore v. Seamen's Bank for Savings.

71 N.Y.S. 1026 Court N.Y. City Ct. English

Delivered by HASCALL, J.

Contents

Majority

p. 1026
(35 Misc. Rep. 379.)
PODMORE v. SEAMEN’S BANK FOR SAVINGS.
(City Court of New York, General Term.
June, 1901.)

Headnote

Witness—Competency—Transactions with Decedent.
In an action by an administrator of a depositor against a savings bank to recover a balance of decedent’s deposit, where the bank alleges payment to a donee causa mortis, such donee is not an incompetent witness regarding the gift, under Code Civ. Proc. § 829.
Appeal from trial term.
Action by John Podmore, administrator of Annie Podmore, against the Seamen’s Bank for Savings, on the account of the intestate with the bank. Defendant alleged a gift of the deposit, causa mortis, to one Bridget Beilly, and payment to such donee. From a judgment for plaintiff, defendant appeals. Beversed.
See 57 N. Y. Supp. 829 , 59 N. Y. Supp. 629 , and 62 N. Y. Supp. 526 .
Argued before HASCALL and O’DWYER, JJ.
Henry S. Wardner, for appellant.
Hymes, Woytisek & Schaap (Michael Schaap and Edward Hymes, of counsel), for respondent.

We think that the court at trial term erred in striking out the testimony of Bridget Beilly, and in not submitting to the jury the question as to whether there had been a gift to her of the money deposited and the account kept with the defendant bank, already paid over and closed. It was the direct issue involved, under the defendant’s pleading. Mrs. Beilly is not an interested party, to be precluded from testifying, under section 829 of the Code of Civil Procedure,—is not a party at all, nor “a person from, through or under whom such a party * * derives his interest.” The bank, it appears, in no way succeeded to her title, and she is not “interested in the event,” within the meaning of the statute, and could not be bound by the judgment, whichever way it should go. For these reasons, her testimony was competent. Hobart v. Hobart, 62 N. Y. 80 ; Nearpass v. Gilman, 104 N. Y. 507 , 10 N. E. 894 ; Wallace v. Straus, 113 N. Y. 242 , 21 N. E. 66 . Judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.

O’DWYEB, J., concurs.

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