Wilson v. Kane

Rich, J.: The defendant Kane, as executor of Caroline A. Van Duzer, deceased, a sister of the respondent, appeals from a judgment in favor of the plaintiff, sustaining the plaintiff's contention of a gift inter vivos of a deposit in the defendant bank, made to him by his sister shortly prior to her decease. The alleged gift was established by the evidence of plaintiff’s wife, corroborated by the evidence of his daughter, and a nurse of the deceased who was wholly disinterested. The sole question presented to the court was one of fact, and the disposition of the case should not be disturbed unless, as contended, the exceptions present reversible error. The plaintiff was permitted to testify, over the appellant’s objection and exception, under the provisions of section 829 of the Code of Civil Procedure, that when he went to the house occupied by his sister on the night that he alleges she gave him her bank book and the money represented by the deposits, he did not have the bank book in his possession, and that when he left the house he did have it. I think this evidence was incompetent and inadmissible, if the fact to which plaintiff testified was relied upon or necessary to establish the gift or a delivery of the bank book, as the presumption flowing [79] from it would tend to establish a personal transaction between the deceased and the plaintiff, namely, the consummation of the gift by the delivery of the bank book; but where, as in the case at bar, the delivery is established by independent, uncontradicted evidence, proof of possession does not imply a personal transaction (Hoag v. Wright, 174 N. Y. 36, 39); and, in addition, the evidence was not material because the gift and delivery was established by independent evidence, upon which the trial court expressly based his decision, and it is well settled that a judgment will not be reversed because of the admission of evidence incompetent under the provisions of section 829 of the Code, where such evidence is not material or necessary for plaintiff’s success. It was at the most a technical error which did not affect the result and did not prejudice the appellant. (Matter of Bernsee, 141 N. Y. 389; Hutton v. Smith, 175 id. 375.) The judgment must, therefore, be affirmed, with costs payable from the estate. Mills, Putnam and Blackmar, JJ., concurred; Jenks, P. J., not voting. Judgment affirmed, with costs payable from the estate.