and 118 New York State Reporter

defendant. A large portion of the claim was eliminated as objectionable under the statute of frauds, the learned justice deciding to submit to the jury only whether the defendant had on a certain day (the 27th of September, 1902) requested the doing of the work, and promised to pay therefor, and the value of such work, if any. Both parties testified, and each contradicted the other. As against the defendant, however, there were the statements of one or more other witnesses, and also some corroborative incidents in evidence. On the other hand, it is a fact that the plaintiff was straightly contradicted by one of his own witnesses, and was also confronted with a misstatement in his petition to sue in forma pauperis, the order for which was vacated then and there upon the trial. Sorry as was the evidence, it may not be said that the jury might not give credence to it, and the judgment must stand, except as to two items-one, $79.30, a sum loaned to the supposed owner of the premises, and another, $26.55, for services rendered prior to September 27th, aggregating together $105.85, reducing the judgment to $164.92.

The judgment appealed from modified by its reduction to $164.92, and, as so modified, affirmed, without costs. All concur.

DICKINSON v. HOES.

(Supreme Court, Trial Term, New York County. May, 1902.)

1. ADMINISTRATION-GIFTS CAUSA MORTIS-REFERENCE.

In the case of an alleged gift causa mortis, the subject of the gift is an apparent asset in the administrator's hands, and, though there is no other property, a reference may be had under Code Civ. Proc. § 2718, authorizing a reference to determine disputed claims against a decedent's estate.

2. SAME NECESSITY OF ADMINISTRATION-SOLE DISTRIBUTEE.

A sole distributee of an estate against which no debts exist may appropriate it without administration.

8. GIFTS CAUSA MORTIS-Delivery.

A gift causa mortis of money on deposit was perfected by delivery by the donor to the donee of a receipt for the money executed by the depositary.

4. SAME-SUBJECT MATTER-RESIDUARY Gift.

A gift causa mortis of the residue of certain funds left after the donee should pay for the burial of the donor was valid.

5. SAME POSSESSION BY DONOR.

Where an administrator was entitled, as distributee, to certain funds of the estate which were deposited under an agreement that he might draw a certain amount each month by his check, countersigned by the surety on his bond as administrator, he could make a valid gift causa mortis of said fund.

Action by Jennie A. Dickinson against William M. Hoes, administrator of the estate of John Kealey, deceased. Judgment for plaintiff on report of referee.

Rose Kealey, a widow, died May 2, 1899, in this city, and was buried in Potter's Field by the city authorities. She left her surviving an only son, who had not been informed that his mother had $2,500 on deposit in two savings banks in this city. Some days after her burial the son, John Kealey, found the savings bank books in an old hat box upon the top shelf of a closet,

12. See Executors and Administrators, vol. 22, Cent. Dig. § 10.

and thereupon he took out letters of administration upon his mother's estate, the United States Fidelity & Guarantee Company becoming surety upon his bond. The savings bank books were given to the surety company, who gave him a receipt for them, and he and the company executed an agreement under seal as to the deposit and payment of the money. The money was taken out of the savings banks and deposited with the Colonial Trust Company, upon which John Kealey was allowed to draw $50 per month by his check countersigned by the surety company. He continued to occupy the rooms his mother and he had occupied in an old-style tenement house, of which Mrs. Jennie Agnes Dickinson was janitress. Mrs. Dickinson's children had been accustomed to go to the grocery store and do other errands for old Mrs. Kealey, and Mrs. Dickinson often helped her and her son in many ways. On the 9th day of April, 1900, John Kealey was found lying on the floor of his room moaning, and, Mrs. Dickinson having been called, he said to her that he was dying, and he asked her to bury him, and take his mother out of the Potter's Field and bury her alongside of him. Upon Mrs. Dickinson declaring she had no money to do that, he said he had plenty, and told one of her daughters to go to a bureau drawer, to which he pointed, and get some papers. He handed the papers to Mrs. Dickinson, saying: "These papers are yours. You bury me, and take my mother out of the Potter's Field and bury me alongside of her, and all that is left over and all the money is yours." A plumber who was working in the house came into the room, and suggested to Mr. Kealey that he ought to sign his name. Mr. Kealey asked for a pencil and the papers, took out the agreement he had signed, and under his name and opposite the seal he made his mark, saying, as he handed the papers back to Mrs. Dickinson, "This is all I can do to-day." At 7 o'clock that night, on his way to the hospital, John Kealey died. On the 19th day of April, 1900, the public administrator called upon Mrs. Dickinson and demanded the papers of John Kealey from her. She told him they were her property; the public administrator insisted, and took the papers from her, giving her his receipt. The Colonial Trust Company and the public administrator were then notified in writing that the moneys on deposit were her property, and she demanded the same, which being refused, she brought an action in the Supreme Court to recover the moneys. The cause came on for trial, and was decided against Mrs. Dickinson upon the ground that the moneys did not belong to John Kealey, so he could not dispose of them until administration upon his mother's estate had been completed, and he had been discharged, as the surety company was liable upon his bond until then. The public administrator was then appointed administrator of both Rose Kealey's and John Kealey's estate, and thereupon the money on deposit was paid over by the Colonial Trust Company to him. Mrs. Dickinson then served notice of claim, and demand of payment, and upon an offer to refer her claim under the statute the present referee was appointed.

George F. Langbein, for plaintiff.

Frank W. Arnold, for defendant public administrator.

PRYOR, Referee. Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950, not cited by counsel, occurs to the referee as possibly fatal to the validity of this proceeding. But in that case the gift was inter vivos, and, taking effect during the lifetime of the decedent, could not constitute a claim against him or his estate. But here is a gift mortis causa, which, not being effectual until the death of the donor, is an apparent asset in the hands of his administrator, and is so claimed by him. Williams v. Guile, 117 N. Y. 343, 348, 22 N. E. 1071, 6 L. R. A. 366; In re Crosby (Sur.) 20 N. Y. Supp. 62. I conclude that the order of reference is not a nullity, and that I may proceed to determine the matter in controversy. Code Civ. Proc. § 2718. John Kealey being sole distributee of his mother's estate, and no debts existing against it, he had a right to appropriate it without administration. Blood v. Kane, 130 N. Y. 514, 29 N. E. 994,

and 118 New York State Reporter

15 L. R. A. 490; In re Mullon's Estate, 145 N. Y. 104, 39 N. E. 821; Barlow v. Myers, 24 Hun, 286, 290; Blood v. Kane, 15 L. R. A. 493, note.

It appears by a preponderance of proof that John Kealey meant to make the gift; that he was capable of forming such intention; that he made the gift in apprehension of death; that he died of the malady with which he was then afflicted; that he perfected the gift by due delivery; and that the donee accepted the gift. That the gift was perfected by the delivery of the receipt and agreement is an adjudged proposition. Elam v. Keen, 4 Leigh, 333, 26 Am. Dec. 322. The efficacy of the gift is not impaired by the fact that it was only of the residue of the fund, after payment for the burials. Podmore v. Savings Institution, 48 App. Div. 218, 62 N. Y. Supp. 961; Loucks v. Johnson, 70 Hun, 565, 24 N. Y. Supp. 267. Nor is the gift invalidated because the concurrence of the surety company was indispensable to the possession of the fund. Gilkinson v. Third Ave. R. R., 47 App. Div. 472, 63 N. Y. Supp. 792; Page v. Lewis, 15 S. E. 389, 18 L. R. A. 170, 180, 37 Am. St. Rep. 848.

The conclusion is that the judgment must be for the plaintiff.

HALLWOOD CASH REGISTER CO. v. FINNEGAN.

(Supreme Court, Appellate Term. June 22, 1903.)

1. SALE-EXECUTORY CONTRACT

STIPULATION-CONSIDERATION-REVOCATION. Defendant ordered certain goods from plaintiff by a writing in which it was stipulated that the order should not be countermanded, but, before the order was accepted, plaintiff received a notice from defendant countermanding it. Held, that defendant was not liable on the order, there being no consideration for the stipulation that it should not be countermanded.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by the Hallwood Cash Register Company against Michael J. Finnegan. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Hardiman & McGoldrick, for appellant.

Sands & Wasservogel, for respondent.

MacLEAN, J. The defendant, by writing dated March 4, 1903, ordered one Total-Adding Register of the plaintiff, upon terms therein stated, and expressly agreed that "this order shall not be countermanded." Whether the order was sent by mail, or handed to a representative of the plaintiff, empowered to or who did accept it on its behalf, does not appear; and so there is no evidence of acceptance of the order earlier than March 9th, when the plaintiff tendered delivery of the machine, and March 12th, when by letter it acknowledged the receipt of the order. Prior thereto, and March 7th, the plaintiff received a letter from the defendant-a registered letter-countermanding the order. In this, its action for the purchase price, judgment was rendered in favor of the plaintiff,” the

court below "following the decision of Ideal Cash Register Company against Frank S. Zunino, decided November, 1902, by the Appellate Term," and the defendant appeals, contending no liability because no contract. He is right, for his statement that he would not countermand, being without consideration, was not binding, and acceptance or acts tending thereto by the plaintiff, subsequent to the revocation of the order, were unavailing and ineffectual. The case of Ideal Cash Register Co. v. Zunino, 39 Misc. Rep 311, 79 N. Y. Supp. 504, is distinguishable, in that the order there given was accepted by the plaintiff, and was treated as a contract by the parties; the defendant contending that the plaintiff had mistaken its remedy, not that it had no remedy. The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.

EUSTIS v. STEINSON.

(Supreme Court, Appellate Term. June 22, 1903.)

1. NEW TRIAL-ALTERCATION BETWEEN PARTIES-DESTRUCTION OF PAPERS. On reopening court after a recess, defendant stated that, while examining his papers, plaintiff had seized them, torn them up, and called defendant a thief. Plaintiff stated that he had found exhibits he wanted among defendant's papers, and taken them. Defendant interposed that plaintiff was then handling his papers, and asked that he be prevented from doing so. Defendant refused to proceed, and the court directed a verdict for plaintiff. Held, that a motion for a new trial by defendant on the ground that he had not been protected in his rights was untenable.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by John E. Eustis against George Steinson. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

George Steinson, in pro. per.

Eustis & Foster, for respondent.

PER CURIAM. The action was brought on a written contract for legal services. The plaintiff claims he performed his part and earned his compensation. This claim is disputed by defendant. Each party conducted his own case at the trial. After considerable testimony had been taken, the court took a recess. Upon the reopening the following scene took place:

While I

Defendant: I move to punish the plaintiff for contempt of court. was examining my papers, to hand to you what I thought was proper for you to have, he grabbed the papers, and tore them, and called me a thief, and threatened to hit me. The Court: That was not in the presence of the court. Plaintiff I asked for the exhibits, and found among his papers the papers I wanted, and took hold of them, and he grabbed them up and tore them. The Court: That is a question of fact between you gentlemen, of an act committed while the court was in recess, and I cannot take cognizance of it. Defendant: He is handling my papers again, and I ask the court not to allow him to do so. Unless I have the protection of this court, I won't proceed further. The Court: Are you ready to proceed? Defendant: I will proceed

and 118 New York State Reporter

no further. The Court: The jury are instructed to find for plaintiff for the sum of $200, with interest from February 1, 1901, making a total of $225. (The jury found accordingly.) Defendant: I move for a new trial on the ground that the defendant has not been protected in his rights before the court, and on the ground that the evidence has been so mixed up that it is impossible for him to proceed, and on the ground that the court has refused its protection to him in the presentation of his case. (Motion denied. Exception taken.)

The defendant took no exception to the failure of the court to submit the issues to the jury, and made no motion in respect thereto. He relied upon his exception to the refusal of the court to grant a new trial. Defendant's motion for a new trial was based solely upon untenable grounds.

The judgment should be affirmed, with costs.

STOWE v. WHITE et al.

(Supreme Court, Appellate Term. June 22, 1903.)

1. ACTIONS-FAILURE TO PROSECUTE-OBJECTIONS-WAIVER.

On a motion to dismiss an action for neglect to prosecute, an attorney testified that plaintiff came to him, stating that he was surprised to learn that his action had not been put on the calendar by his attorney, and that witness procured the plaintiff's papers from his attorney, explaining the circumstances to defendant's attorney, who granted an adjournment of the motion for a week on condition that witness place the action on the calendar and serve notice of trial, and that he did this, and had himself substituted as plaintiff's attorney. Held, that such agreement was a waiver of the delay.

Appeal from City Court of New York.

Action by Reddington J. Stowe against James M. White and others. From an order denying defendants' motion to dismiss the complaint, they appeal. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Leventritt & Brennan, for appellants.
Edward B. Bloss, for respondent.

MacLEAN, J. Issue was joined in this action October 18, 1901. Under date of March 10, 1903, the defendants noticed a motion, returnable on the 20th of that month, for an order dismissing the complaint because of the unreasonabic neglect to prosecute the cause, which had not been placed upon the calendar or noticed for trial, while later issues had been tried. Upon the hearing of the motion, an attorney at law deposed that the plaintiff had come to him, and stated that he was surprised by learning that his action had not been put upon the calendar by his attorney, to whom he had advanced funds; that deponent thereupon procured the plaintiff's papers from his attorney, explained the circumstances to the defendants' attorneys, and procured from them adjournment of the motion for a week, agreeing that in case he did not place the action upon the calendar in the mean season, and serve a notice of trial, defendants' attorneys might dismiss the action without opposition, all of which he had done, besides having had himself substituted as attorney for the plaintiff.