Rivenburgh v. First National Bank of Middleburgh

SMITH, J. The certificates of deposit sued upon are in the usual form, reciting that King had deposited in the bank $100 or $30, payable to the order of himself on return of certificate properly indorsed. If these certificates have been assigned to plaintiff, though without the indorsement of King, upon proof of the assignment and upon his own indorsement the plaintiff would seem to be entitled to recover. Savage v. Brevier, 12 How. Prac. 166; Negotiable Instruments Law (section 79, c. 712, p. 731, Laws 1897). It is not necessary here to decide whether the delivery of this instrument to Safford constituted a valid gift to plaintiff causa mortis. The assignment of the certificates was given to Safford, to be delivered to plaintiff after King’s death in payment for the services of plaintiff in caring for him during his sickness, and for the expenses of his burial. These services were rendered by plaintiff, and the expenses incurred, presumptively, upon the faith of the paper which Safford held. The consideration of the transfer was not the plaintiff’s promise to perform the services or to incur the expense. It was the actual performance of the services and the actual provision for the burial. After the performance of such services, plaintiff became entitled upon the death of King to the delivery of the instrument held by Safford and to the certificates. The paper recites that King is to hold the property as long as he lives, and Safford was requested by King to hold the paper, and deliver it to Rivenburgh after King’s death. While the authority to Safford was revocable if King recovered from his sickness, it was otherwise absolute. King did not recover. The authority was not revoked, and the paper executed by King was properly delivered by Safford to plaintiff after King’s death. The judgment should therefore be reversed. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur, except PARKER, P. J., dissenting.