Walsh v. Bowery Savings Bank , 15 Daly 403 ( 1889 )

Van Hoesen, J.

Under the complaint, as it was originally drawn, it was proper to admit proof that the plaintiff acquired title by a donatio causa mortis. An amendment was not at all necessary, though the counsel for the defendant succeeded in frightening the plaintiff’s attorney into making a motion for leave to amend. Such leave was granted, but the defendant was not thereby prej udiced.

A good donatio causa mortis was proved. The money on deposit was given the plaintiff, and the bank-book was actually delivered to her by the donor to enable her to get the money. The donor was in expectation of impending death, and she died in a day or two afterwards of the disease whose fatal issue she anticipated. A good donatio causa mortis may be made by the delivery of the donor’s bank-book to the donee, where the circumstances exist that must surround a gift of that description. 8 Amer. & Eng. Cyclop. Law, 1345,1346 et seq.

As to the validity of the gift in this case there cannot be a doubt; but a question is made as to the right of the plaintiff to recover the money from the bank. The money was actually drawn from the bank by the administrator of the donor, and, as the gift was valid, the plaintiff might recover judgment against the administrator in an action for money had and received to her use. Whether such a judgment would be of any value in this case, we have no means of knowing. In Massachusetts, it was decided in the case of Pierce v. Bank, 129 Mass. 425, that, even without the consent of the administrator, the donee might maintain an action for the money in the administrator’s name. Such an action could not be maintained in this case, because the administrator has already collected the money from the bank. The difficulty in which the bank now finds itself is entirely of its own creation; for, after having been notified that the plaintiff claimed the money as hers by gift, it nevertheless, either carelessly or willfully, disregarded the notice, and paid the money to the administrator. The payment to the administrator, after notice of the plaintiff’s rights, leaves the bank in no position to call on the plaintiff to look to the administrator for the money. By thus paying the administrator the bank stepped into his shoes, and cannot defeat the plaintiff’s claim unless the administrator could successfully resist it. The case was rightly decided, and judgment should be affirmed, with costs.