McGuire v. Wanamaker

273 A.D. 1022, 79 N.Y.S.2d 594, 1948 N.Y. App. Div. LEXIS 5828

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1948
• Status: Published

Opinion

Appeal by permission from an order of the Appellate Term, affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, in favor of respondents, in an action to recover a fur coat and muff from defendant John Wanamaker New York, where the articles had been stored by a sister of the plaintiff’s assignor. Defendant Wanamaker inter-pleaded the administrator of the individual from whom it accepted the articles for storage. Judgment for the interpleaded defendant affirmed, with costs. Public policy precludes giving effect to the attempted gift causa mortis under the undisputed facts herein. (Bainbridge v. Hoes, 163 App. Div. 870; Shop-man v. Protected Home Circle, 174 N. Y. 398, 405; Champney v. Blanchard, 39 N. Y. Ill; Grymes v. Hone, 49 N. Y. 17.) Carswell, Acting P. J., Johnston, Adel and Wenzel, JJ., concur; Sneed, J., dissents and votes to reverse the order of the Appellate Term and the judgment of the Municipal Court, and to direct judgment for plaintiff, with the following memorandum: The proof established intent, delivery and acceptance. Recall of mailed letters, under United States Post Office regulations, is not within the discretion of the posting party. (Chapman v. Mills & Gibb, 241 F. 715, 717, affd. 250 F. 1018.) The deposit of the storage receipt in the post office by decedent, with the conceded intent upon her part to vest title in the donee, constituted valid delivery and transfer of title; and acceptance, not required to be immediate, is here unquestioned. (Matter of Van Wert, 66 N. Y. S. 2d. 7, and cases there cited; Matter of Golos, 64 N. Y. S. 2d. 625.)