SECOND DEPARTMENT, JUNE TERM, 1898.

[Vol. 31. like reliance, he should not only examine the contract with the owner, but also that of the sub-contractor; for if the sub-contractor fails to perform his contract so that nothing becomes payable thereon, or is paid in full, according to its terms in case of performance, there can be no lien." This case and its language were cited with approval in French v. Bauer (supra). Clearly, then, when the material was delivered the payment became due by the terms of the contract; and it matters not that some of it had been paid before it could have been legally demanded. In any event, plaintiffs were in nowise prejudiced on account of such payment. In the present case, if the plaintiffs had made inquiry they would have discovered what the terms of the contract were, and would have seen that the contractors were required to make payment, and, therefore, they cannot complain. So that if the element of collusion be held not to apply to payments made in advance, still the result would be the same. Nothing which is contained in Hilton Bridge Construction Co. v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 390) affects this result. The case there turned upon a question of practice, as to who were the proper parties to be brought in; and this was the only point determined which was germane to a decision in that case. It is evident that the court was mistaken so far as it referred to the construction of the act of 1885, as it refers to the case of Post v. Campbell as construing such act. Post v. Campbell, however, construed the act of 1862, and was decided in 1881, before the amendment took effect. It consequently cannot be regarded as an authority upon the construction of the law of 1885. The language used in such opinion, therefore, construing the effect of the advance payments, cannot be held to apply to the present statute. But were it otherwise, the judgment must still be for the defendant, as we have seen.

The allowance for expense incurred in completing the contract of the engineering company was properly allowed. (Lind v. Braender, supra.)

It follows that the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

App. Div.]

SECOND DEPARTMENT, JUNE TERM, 1898.

MARY TILFORD, Respondent, v. THE BANK FOR SAVINGS, Defendant, and JOHN MCELWEE, Individually, and JOHN MCELWEE, Interpleaded, as Administrator of the Estate of JOHN MCELWEE, Deceased, Appellants.

Gift causa mortis - evidence insufficient to establish it.

Evidence in reference to a gift causa mortis of a savings bank account, which was held by the court not to be of that clear, convincing and satisfactory character which is essential, under the laws of the State of New York, to uphold such a gift, considered.

Testimony of a witness, given in support of a claim of a gift causa mortis, which tends only to establish a gift inter vivos, is inoperative to support the claim except so far as it may show a disposition to make a gift.

APPEAL by the defendants, John McElwee, individually, and John McElwee, interpleaded, as administrator of the estate of John McElwee, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of July, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.

Charles M. Earle, for the appellants.

Jesse W. Johnson [Albert E. Lamb with him on the brief], for the respondent.

HATCH, J.:

Upon the trial the court found that there was a valid gift to the plaintiff, causa mortis, by the delivery of the bank book representing the moneys on deposit in the bank issuing the same. The court made a general decision without stating separately the facts found. Under the exception filed to such decision we are required to review all questions of fact and law presented by the record. (Code Civ. Proc. § 1022.) The rule of law which governs the disposition of cases involving gifts inter vivos and causa mortis, so far as cogency of proof is concerned, is somewhat different from the strength of evidence usually found sufficient for the establishment of contracts, the rights of parties arising thereunder and of other similar questions. The reason for this rule is found in the fact that fraud may be quite easily perpetrated, that weakness and uncertainty of will

SECOND DEPARTMENT, JUNE TERM, 1898.

[Vol. 31. are often attendant upon the donor, and temptation to construe an act and circumstances into a gift by reason of interest presses strongly upon the donee. For these and other reasons the courts have uniformly hedged about the establishment of these gifts somewhat unusual requirements, and have insisted that the proof in support thereof shall be strong, clear and conclusive. "In many of such cases there is great danger of fraud, and all the books concede that the evidence which proves the gift should be clear and convincing, strong and satisfactory. Although it may not be true that the law presumes against a gift, it certainly does not presume in its favor but requires proof of it. (Gray v. Gray, 47 N. Y. 552; Grymes v. Ione, 49 id. 17; Lewis v. Merritt, 113 id. 386.)" (Devlin v. The Greenwich Savings Bank, 125 N. Y. 756.)

"Whoever alleges a gift must prove it satisfactorily. A doubtful case will not do." (Doty v. Willson, 47 N. Y. 580.)

"As there is great danger of fraud in this sort of gift courts cannot be too cautious in requiring clear proof of the transaction. This has been the rule from the early days of the civil law (which required five witnesses to such a gift) down to the present time.” (Grymes v. Hone, 49 N. Y. 17.)

"Whoever alleges a gift must establish it by satisfactory proof. Where the matter is left in doubt upon the whole case the case must fail." (Matter of Rogers, 10 App. Div. 593.)

Applying these rules to the evidence in this case brings us to the conclusion that the plaintiff has failed to meet the requirement and that the testimony offered fails in fairly supporting the conclusion reached by the learned trial court. In applying the evidence and making a disposition of the case it is proper that we take a general survey of the claimants to the fund and their relation to the deceased, and of the deceased himself. The plaintiff is a married woman, the wife of Alexander Tilford, a machinist. Neither wife nor husband was in any wise related to the deceased, and so far as is disclosed by the record, had no acquaintance with him until he went to their home to board, on the 1st day of February, 1896, where he continued until the fifth day of October, when he died. The deceased paid Mrs. Tilford five dollars a week for his board, and this sum seems to have been ample compensation for all the services which were rendered in caring for the deceased during that

App. Div.]

SECOND DEPARTMENT, JUNE TERM, 1898.

period of time. The deceased seemed to require but little care and attention during this period, and the care and attention which le did require were of quite a simple character.

The defendant McElwee is a son of the deceased. In October, 1893, he came to live with his son. Prior thereto the deceased had met with an accident in which he had broken his jaw, arm and nose and lacerated his head; he had been taken to a hospital and was removed therefrom to his son's house, where he remained in bed and under the doctor's care for about two months. During this time he required a muzzle to keep his jaw in place, was unable to feed himself, could only take liquid food which was fed to him with a spoon, and he required constant care in cleansing his mouth, keeping the supports in place and otherwise nursing him. The condition of his mouth was quite offensive, requiring constant care in spraying with an antiseptic dressing, and nursing him was a disagreeable duty. The defendant McElwee was kept from his business in attendance upon the deceased, and does not seem to have omitted anything which was requisite for his proper care. The deceased continued to reside with his son up to February, 1896, when he left his house and went to board with the plaintiff. It does not appear that the deceased paid anything to his son for the care which he received or for his board, or that he was expected to pay anything. Neither does it appear that the parties had any difficulty during this period, except that the son, shortly before his father left his house, objected to having liquor in the house, and objected upon one occasion to the father's sending his boy of tender years for liquor. There is some testimony of declarations made by the deceased to several witnesses, that he was not happy at his son's house; that he did not receive proper attention, or get enough to eat, and that he did not intend to give him any of his money, or more than a dollar "through law." Aside from these declarations there is no testimony that he did not receive proper care and attention at the son's house, while the testimony is abundant to show that during his illness he received the best of care, and it is quite probable that such care so continued after his recovery and until he left. Indeed, the case is destitute of any proof that he had any difficulty with the son, aside from the remonstrance as to the liquor, up to the time when he left the son's house.

SECOND DEPARTMENT, JUNE TERM, 1898.

[Vol. 31. The testimony is entirely satisfactory in establishment of the fact that the deceased was of an irascible temperament, and that his irascibility grew upon him; that, without cause or provocation, he would rise from the table when at meals, leave the room and slam the door; that he would suddenly, and without cause, break off a conversation and act in an excitable manner, without occasion for it. The physician who attended him at the son's house testified that after his recovery his physical condition was good, "but his mental not so well. He would become erratic; his mind would wander at times, occasionally. I have seen him become very impulsive, very excitable at times, when there was no occasion for it. I had conversations with him. Mentally, he sometimes would act a little imbecile; at other times he would act rational. He would at times be talking on a subject, go right on to something else. He would be very quarrelsome at times. He would get up in his seat and would walk around and not want to talk to anybody, and in fifteen minutes he would come back to himself and would be all right again. Quarrelsome at times, very irritable, very nervous.” He also spoke to this physician about drawing his will, but said nothing about disinheriting his son. This witness was asked: "From what you know of his mental and his general condition, was he a man that was easily led?" This was objected to upon the ground "that witness cannot testify as to that, even as an expert." The objection was sustained, and the defendant excepted.

Another physician testified that he saw and examined the deceased in the winter of 1893-1894. "I found that he was suffering from mental and nervous enfeeblement; he acted peculiarly, irritably; I might fill a volume, almost, to detail it." This witness was asked and permitted to testify that the condition of mind in which he found deceased would lead him to be "easily influenced and persuaded." If this testimony was competent, and we think it was, the ruling preceding it was wrong. There was other testimony by later witnesses tending to corroborate this testimony.

It appears, without dispute, that after the deceased left his son's house he drank much more than while he remained with him; that the plaintiff gave him liquor, as he called for it, mostly in the form of milk punches, but in any form or quantity as the deceased wished. The physician who attended him at the son's house stated