[143 N.Y.S.2d 384] Samuel A. Locker, New York City, for appellants.
Anthony B. Cataldo, New York City, for respondent.
Before NOLAN, P. .J, and SCHMIDT, BELDOCK, MURPHY and UGHETTA, JJ.
[143 N.Y.S.2d 385] MURPHY, Justice.
On July 8, 1948, Walter F. Jennings, hereinafter referred to as 'the decedent', withdrew $2,360 of $2,362.35 on deposit in a savings account maintained by his wife and himself in fictitious names at the Williamsburgh Savings Bank. The
withdrawal was manifested by a bank check drawn by the Williamsburgh Savings Bank on the Bank of the Manhattan Company, dated July 8, 1948, to the order of W. F. Jennings, decedent's true name. We are concerned with the alleged delivery of that check by the decedent to his brother, appellant William J. Jennings, hereinafter referred to as 'William'.
On July 13, 1948, the bodies of the decedent and his wife were discovered at their home by the police. William arrived about thirty minutes thereafter. The police retired from the home leaving William in sole and exclusive possession of the effects of the decedent. William received about $150 from the police, which they had found in the house. William also took some silverware to his own home.
On July 15, 1948, the bank check was deposited in the Springfield Gardens National Bank in an account in the name of Josephine Jennings, wife of William, hereinafter referred to as 'Josephine'. The check bears the endorsements of decedent, William and Josephine, in that order. She claims it as her own.
On or about December 1, 1948, William and his brother, respondent Arthur V. Jennings, hereinafter referred to as 'Arthur', were appointed coadministrators of the estate of the decedent. Up to that time William had maintained sole and exclusive possession of the assets of the estate.
This discovery proceeding was instituted by Arthur to determine whether the proceeds of the bank check belonged to the estate. At hearings conducted before a Referee appointed to hear and report, William was permitted to testify, without proper objection, that on July 7, 1948, he had a telephone conversation with decedent, and that on the following day (date of withdrawal) he visited decedent and received the bank check with the endorsement of the decedent thereon, that he kept the check for a day and then gave it to his wife with the endorsements thereon of decedent and himself.
The foregoing testimony was incompetent. It was offered by an interested party as to circumstances from which an inference of delivery of the check could be drawn. Civil Practice Act, § 347; Grey v. Grey, 47 N.Y. 552, 553; Kings County Trust Co. v. Hyams, 242 N.Y. 405, 407, 152 N.E. 129, 130.
So, too, a deposition of Josephine, procured by respondent as an incident of his attempt to discover assets of the estate, affords no basis for a finding of delivery of the check. In that deposition, Josephine testified to receiving the check from her husband during the lifetime of the [143 N.Y.S.2d 386] decedent. ...