Walsh v. Sexton

55 Barb. 251, 1869 N.Y. App. Div. LEXIS 79

• Court: New York Supreme Court
• Decided: November 1, 1869
• Status: Published

Opinion

By the Court, Peckham, J.

Under the decisions of the court, which have been gradually but steadily advancing in that direction, I think the proof offered by the defendant should have been received, and that the justice at the circuit committed an error in its rejection.

He placed his rejection upon the sole ground that the title to the stocks in controversy could not pass without a writing. In principle, I think he was clearly right. But Lord Hardwicke, at an early day, sought to make a distinction as to a bond delivered without writing, which has been repudiated as unsound in principle, but has been steadily followed, and even extended in practice.

I concur in the views expressed by the court in Brown v. Brown, (18 Conn. R. 410,) against both the principle and the policy of sustaining such a gift. But the authorities are the other way. In my judgment, this doctrine is fraught with the greatest dangers. It leads into temptation, from which we all pray to be delivered, and it greatly facilitates frauds. The whole thing is wrong. But it is settled by authority, and we are not' at liberty to reverse it.

The case lately decided in the Court of Appeals, of Westerlo v. De Witt, (36 N. Y. Rep. 340,) sustains the doctrine contended for by the appellant. There, a certificate of deposit in a trust company by the testatrix, given mortis causa, by handing over the certificate to the donee, without any writing, was held to transfer the money deposited. There are many other cases of a similar character, in our courts.

[New York General, Term, November 1, 1869.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Clerke, Ingraham, and Peckham, Justices.]