Mars v. Albany Savings Bank

New York Supreme Court

Mars v. Albany Savings Bank

23 N.Y.S. 658, 69 Hun 398, 76 N.Y. Sup. Ct. 398, 53 N.Y. St. Rep. 144

CourtNew York Supreme Court

DecidedMay 9, 1893

StatusPublished

Cited by1 cases

This text of 23 N.Y.S. 658 (Mars v. Albany Savings Bank) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mars v. Albany Savings Bank, 23 N.Y.S. 658, 69 Hun 398, 76 N.Y. Sup. Ct. 398, 53 N.Y. St. Rep. 144 (N.Y. Super. Ct. 1893).

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Opinion

MAYHAM, P. J.

We fail to see that the material facts on this motion differ in any essential particular from those presented on the former motion in this case. The presentation to the defendant of what purported to be copies of orders purporting to have been made by the testator, unaccompanied by any originals or the original pass book, and the hearsay account of the attorney for Stanley and Judge of the alleged deposit of the order and pass book with Mary Gordon, carries with it very little weight, and furnishes no evidence on which either the defendant or the court is authorized to presume a gift by the intestate, either inter vivas or causa mortis, in the absence of the original orders or any proof on this motion by affidavit of Stanley or Judge or Gordon, all of whom are presumed to be living, and one of whom, at least, competent to testify upon this subject of the genuineness of the adverse claim of Stanley and Judge for this money. Such evidence could have been obtained on this motion, if attainable, or its absence could at least have been accounted for, if this adverse claim is based upon any substantial grounds. On the whole, we do not think the case essentially different from the one disposed of by this court on a former motion, and see no reason for changing the views expressed in that case. We cannot agree with the contention of the learned counsel for the appellant, that the law upon this subject, as declared in this department, is different from that in other departments in this- commonwealth. The opinion of Learned, P. J., in Williams v. Insurance Co., 8 N. Y. St. Rep. 567, which is followed in this case, is in harmony with that of Van Brunt, P. J., in Bank v. Yandes, 44 Hun, 58, and O’Brien, J., in Feldman v. Grand Lodge, (Sup.) 19 N. Y. Supp. 73, and is not in conflict with, but distinguishable from, most of the cases cited by the learned counsel for the appellant.

Order affirmed, with $10 cost and printing disbursements.

PUTNAM, J., concurs in result.

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MAYHAM, P. J.

We fail to see that the material facts on this motion differ in any essential particular from those presented on the former motion in this case. The presentation to the defendant of what purported to be copies of orders purporting to have been made by the testator, unaccompanied by any originals or the original pass book, and the hearsay account of the attorney for Stanley and Judge of the alleged deposit of the order and pass book with Mary Gordon, carries with it very little weight, and furnishes no evidence on which either the defendant or the court is authorized to presume a gift by the intestate, either inter vivas or causa mortis, in the absence of the original orders or any proof on this motion by affidavit of Stanley or Judge or Gordon, all of whom are presumed to be living, and one of whom, at least, competent to testify upon this subject of the genuineness of the adverse claim of Stanley and Judge for this money. Such evidence could have been obtained on this motion, if attainable, or its absence could at least have been accounted for, if this adverse claim is based upon any substantial grounds. On the whole, we do not think the case essentially different from the one disposed of by this court on a former motion, and see no reason for changing the views expressed in that case. We cannot agree with the contention of the learned counsel for the appellant, that the law upon this subject, as declared in this department, is different from that in other departments in this- commonwealth. The opinion of Learned, P. J., in Williams v. Insurance Co., 8 N. Y. St. Rep. 567, which is followed in this case, is in harmony with that of Van Brunt, P. J., in Bank v. Yandes, 44 Hun, 58, and O’Brien, J., in Feldman v. Grand Lodge, (Sup.) 19 N. Y. Supp. 73, and is not in conflict with, but distinguishable from, most of the cases cited by the learned counsel for the appellant.

Order affirmed, with $10 cost and printing disbursements.

PUTNAM, J., concurs in result.

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23 N.Y.S. 658, 69 Hun 398, 76 N.Y. Sup. Ct. 398, 53 N.Y. St. Rep. 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mars-v-albany-savings-bank-nysupct-1893.

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