adopt it. And the uncontradicted evidence also leads to the conclusion that the deceased, in his statement to Dr. Van Duyne, referred to this stock in question. The statement of Mrs. Crouse, above referred to, although it is not conclusive on the surviving administrator, yet having been made while the administrators were engaged in the performance of their duties respecting the estate, and in ascertaining what property belonged to it, it is proper for consideration, and should have its due weight. Breese v. Graves, 67 App. Div. 322, 73 N. Y. Supp. 167. And the same rule applies to the act of the administrators in omitting from the inventory all mention of this stock in question.

The only question involved in the case is, should a delivery of the stock as a gift be inferred from all the facts, which vested the title to the stock in the defendant Florence Crouse Clark? To constitute a valid gift there must be an intent to give on the part of the donor, a delivery of the thing given in pursuance of such intent, and acceptance on the part of the donee. Delivery may be either actual or constructive. It must divest the donor of possession and dominion over the thing given. Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531; Schwind v. Ibert, 60 App. Div. 378, 69 N. Y. Supp. 921; Gilkinson v. Third Ave. R. R. Co., 47 App. Div. 472, 63 N. Y. Supp. 792. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. Fulton v. Fulton, 48 Barb. 581. It depends to some extent on the character of the thing given and the relative situation of the parties. Matter of Wachter, 16 Misc. Rep. 137, 38 N. Y. Supp. 941. There must be a positive change of possession, and the donor must have put it out of his power to recall the gift or repossess himself of its subject-matter. Little v. Willets, 55 Barb. 125. Enough must be done to pass the title, and the act of transfer must be consummated. Martin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; Gannon v. McGuire, 22 App. Div. 43, 47 N. Y. Supp. 870. It must be shown that the decedent intended to divest himself of title in favor of the donee, and also that he accompanied his intent by delivery. Matter of O'Connell, 33 App. Div. 483, 53, N. Y. Supp. 748. Any act of the owner of a chose in action, showing not only a present intention to transfer, but that he regarded himself as having carried his intention into effect, is sufficient. Malone's Estate, 13 Phila. 313. The words "given" or "have given" and like expressions, in connection with other facts, have a forcible signification when the question. of gift arises, as the following authorities illustrate:

In Re Townsend, 5 Dem. Sur. 147, it appeared that A. purchased bonds which he caused to be registered in B.'s name. The income from them he deposited in B.'s name. A. said at various times that he wished to create a fund for B.'s benefit. A. retained possession of the bonds, and they were found among his papers after his death. Held, that B. took title thereto by gift.

In the case of Grangiac v. Árden, 10 Johns. 293, the defendant Arden had purchased a lottery ticket with his own funds, on which he had written the name of his daughter, and deposited it in his desk. The ticket drew $5,000. It did not appear by direct testimony that

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the daughter ever had the ticket in her possession, but the defendant had declared that it was hers. The court held that there was sufficient evidence of a delivery, saying in part:

"The evidence from which the jury have inferred a delivery is the declaration and acknowledgments of the defendant. * * All these declarations refer to and recognize a gift as having been made. They afforded reasonable ground for a jury to infer that all the formality necessary to make it a valid gift had been complied with, and the right and title of the plaintiff to the money complete and vested."

In the case of Lord v. N. Y. Life Ins. Co., 66 S. W. 290, 56 L. R. A. 596, the plaintiff claimed an insurance policy which was found among the donor's papers at his banker's after his death. The plaintiff offered the testimony of several persons who testified that the donor had declared to them that the policy was his sister's. The jury found a verdict for the plaintiff. On appeal the judgment was affirmed, the court holding that there was sufficient evidence to support the finding of the jury that the policy was given to the plaintiff, and that actual delivery thereof might be implied from the evidence. The Supreme Court of Texas affirmed this decision, saying in part:

"The declarations of Richard Lord were competent to prove both gift and delivery. It could not be true that it belonged to his sister Kate, unless Lord had given it to her, and actually delivered it, because the right of property could not have passed without such act of delivery. The Supreme Court of South Carolina, in passing upon a similar question, said: 'It is true that a delivery must be proved; but this is a question of fact for the jury, and, inasmuch as there can be no complete and legal gift without delivery, the very use of the term "gift" or "I have given" may sometimes be intended to include the delivery, and where, therefore, such declarations have been used by the donor, and they are admitted by the court as competent, we think it ought to be left to the jury to say whether the gift has been proved, including the delivery; and it ought not to be laid down as a rule of law to govern the jury that such declarations in themselves are insufficient to prove the gift.' Sprouse v. Littlejohn, 22 S. C. 358.❞

The taking of notes in the wife's name for money due the husband, he expressing to her his intention to make the gift, the depositing of them where she had access to them, and afterward placing them for safe-keeping, is held sufficient to constitute a gift without actual manual delivery. Scott v. Simes, 23 N. Y. Super. Ct. (10 Bosw.) 314. Where the donor repeatedly declared his intention to make a certain gift, subsequent admissions that he had made the gift are sufficient evidence of an actual delivery to complete the title of the donee, where it does not appear that the declarations were made in jest. Blake v. Jones, 1 Bailey, Eq. 141, 21 Am. Dec. 530. Even where the gift remained in the hands of the intestate till his death, a gift may be proved by acknowledgments of the donor if the jury are satisfied that it was attended with all the necessary formalities. Caldwell v. Wilson, 2 Speers, 75. Delivery of a gift inter vivos as between the donee and the donor's representatives may be proved by declarations of the donor. Gordon v. Young's Adm'r, 10 Ky. Law Rep. 681; Burney v. Ball, 24 Ga. 505; Sprouse v. Littlejohn, 22 S. C. 358. An actual delivery may be proved from the facts and circumstances, and need not be proved by witnesses who saw it made. Hitch v. Davis, 3 Md. Ch. 266. The relationship of the parties will sometimes aid in decid

ing that a delivery of property was intended for a gift. Smith v. Montgomery's Adm'r, 21 Ky. 502.

Mr. Brantly, in his work on Personal Property, at section 195, says:

"In the case of gifts between parents and children living together, less proof is required to establish the delivery and separate possession of the donee than in other cases. * So where a father gives domestic animals, etc., to his daughter living with him, mere words of gift are sufficient to establish it, and the fact that the donor may continue to exercise some control over the thing is immaterial."

In this case the expressions and acts of Mr. Crouse clearly show his intention to make the gift, and that he regarded himself as having carried this intention into effect. In view of all the facts of the case and the weight of authority on the subject, it must be held that there was an actual and intentional delivery of the stock as a gift to the defendant Florence Crouse Clark, and an acceptance of the same by her.

It may be further remarked that the evidence, apart from the concession of the gift by the administratrix, and apart from the act of the administrator and administratrix in omitting the certificates of stock from the inventory, compels the same conclusion as above expressed, which is derived from a consideration of all the evidence. The gift being, therefore, in all respects valid and legal, judgment must be awarded against the administrator and in favor of the defendant Florence Crouse Clark. Findings and judgment may be prepared accordingly.

Judgment accordingly.

SCHENECTADY RY. CO. v. PECK et al.

(Supreme Court, Appellate Division, Third Department. November 11, 1903.) 1. STREET RAILWAYS-FEE IN STREET-CONDEMNATION.

Laws 1895, p. 791, c. 933, amending section 90 of the railroad law (Laws 1890, p. 1108, c. 565), assumes that a street surface railroad corporation can state in its certificate of incorporation the streets in which its road is to be constructed, and the private property over which it is proposed to construct and operate it; provides for filing a map of the proposed route, and that all provisions of section 6 (page 1084) of the railroad law shall apply to the route so located; and then states, "Nothing in this section shall be deemed to authorize a street railroad corporation to acquire real property within a city by condemnation." Held, that such prohibition was intended to relate only to private property, and not to an abutting owner's property rights in the bed of a street.

Appeal from Special Term, Schenectady County.

Condemnation proceedings by the Schenectady Railway Company against Katharine K. Peck and others. From a judgment for petitioner, defendants appeal. Affirmed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Edward Winslow Paige, for appellants.

Hun & Parker (Marcus T. Hun and James A. Van Voast, of counsel), for respondent.

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CHASE, J. In an action between the parties to this proceeding the appellants were adjudged the owners of the fee of that portion of Washington avenue, in the city of Schenectady, described in the petition herein, and the petitioner was enjoined from constructing a street railroad thereon. Peck v. Schenectady Ry. Co., 67 App. Div. 359, 73 N. Y. Supp. 794; Id., 170 N. Y. 298, 63 N. E. 357. In the Court of Appeals the judgment of the Special Term was modified by adding thereto "a provision that, if the defendant shall acquire a right to the use of the land in question for street railway purposes, the judgment shall not be regarded as effective to restrain it from entering upon such premises for the purpose of building, maintaining, and operating its railroad thereon." In that case it is held that the use of a city street for the purposes of a street surface railroad operated by electric power imposes an added burden upon the property rights of the owners of the fee, subject to the public easement for street purposes, and an entry upon such street for the purposes of constructing and operating an electric street railroad thereon constitutes a trespass upon the property rights of such owner of the fee of the street. Following said decision in the Court of Appeals, the petitioner commenced a proceeding to condemn the property rights of the appellants in said lands. It is from a judgment in favor of the petitioner in such proceeding that this appeal is taken. It is conceded that the only question at issue is the question as to the power of the court to adjudge that condemnation be made of the premises described in the petition.

If it be true, as contended by the appellants, that street railroad corporations are prohibited from acquiring by condemnation the property rights of persons owning the fee of streets in cities, it necessarily follows that any one or more persons, owning the fee of any street in a city through the width thereof, even at a single point, may prevent the building of a street railroad upon such street, so long as the law remains unchanged. It is a well-known fact that the property rights of owners of the fee in streets in cities where railroads have been constructed and are being operated have not generally been condemned or purchased. If the appellants' contention is correct, nonassenting property owners could enjoin the operation of railroads over a street, the fee of any portion of which is owned by them; and, if such injunctions were generally insisted upon, it would result in effectually discontinuing the operation of very many. existing roads. No reason for withholding from the court a power so important and essential to contemplated and existing street railroads is apparent. The construction contended for by the appellants would ascribe to the Legislature an intention antagonistic to all legislation on the subject of public rights of way, and be so onposed to the policy and interest of the state that it should not be upheld unless the intention of the Legislature is so plain that no other construction can be given to its language.

The Legislature has authorized the building of street railroads upon streets in cities upon obtaining the consent, as in the statute prescribed, of a part of the abutting owners, and the further consent of the local authorities. The Legislature, also, in recognition of

the benefit to be derived by the public from the erection and operation of street railroads, has further provided that, if the consent of property owners as required by the statute cannot be obtained, the court may appoint commissioners to determine whether such railroad ought to be constructed and operated, and the determination of said commissioners that such road ought to be constructed and operated, when confirmed by the court, shall be taken in lieu of the consent of the property owners as provided by the statute. In view of these statutory provisions, it is inconceivable that it should at the same time withhold the power to condemn the property rights of persons owning the naked fee of the streets, when such power is necessary to make effectual its determination in regard to the necessity of such railroad. The absurdity of ascribing to the Legislature an intention to take away the power of the court to condemn property rights in streets is further apparent when we consider that such property rights cannot be taken without a determination by the court that it is necessary for public use, and also in view of the fact that property rights in the naked fee of a street are in most instances nominal only. In this case it is stipulated that the damage. to the appellants by taking such property rights is six cents, and by consent the decree herein fixes the appellant's damage at that amount, and directs that the same be paid to the appellants. Serious consequences to public and private interests, and the antagonism of the claimed construction of the statute to all other legislation on the subject, are legitimate considerations in determining the intention of the Legislature. In Adee v. Nassau Electric R. Co., 72 App. Div. 404, 76 N. Y. Supp. 589, it was necessary for the court to determine the question here involved, and we agree with the conclusion reached in that case. We think that a further reference to the statutes will show that at no time prior to the enactment of chapter 995 of the Laws of 1895 could a street railroad corporation take private property by condemnation, except such as was incidental to the erection, maintenance, and operation of its railroad on streets, avenues, roads, and highways.

Prior to 1884, street railroad corporations were formed pursuant to the provisions of chapter 140, p. 211, of the Laws of 1850, and the amendments thereto. Matter of W. S. A. & P. R. Co., 115 N. Y. 442, 22 N. E. 356. And proceedings for the condemnation "of any real estate required for the purposes of its incorporation" were by that act expressly authorized. Section 13. The original street surface railroad act (chapter 252, p. 310, Laws 1884) provided:

"Any company organized as aforesaid may construct, maintain, operate, use and extend a railroad * * * on the surface of the soil through, upon, and along any of the streets, avenues, roads or highways of such cities, towns and villages and also through, along and upon any private property which said company may acquire for the purpose. Section 3.

It also provided:

"Such corporation shall also have all the powers and privileges granted and be subject to all the liabilities imposed by this act, or by the act entitled 'An act to authorize the formation of railroad corporations and to regu