Matter of Farian's Accounting.

curring in the result of Mr. Justice Follett's opinion, I cannot concur in the reasons which he has assigned therefor.

It is undoubtedly true that in order to support a gift such as is claimed in this proceeding, the proof should be reasonably clear and satisfactory; but the fact that the witness by whom it is sought to establish the gift may be said to be interested in the result should not preclude a finding that the gift had been established by the evidence. of such a witness. If the question as to the gift was being tried before a jury, the mere fact that the witness proving the gift was the wife of the donee would not permit the court to take the question from the jury; and if the jury, under proper instructions, believed the wife, and there was nothing which made it manifest that the story of the wife was incredible, the verdict could not be disturbed. the case at bar, the mere fact that the respondent sought to establish the gift by the testimony of his wife did not prevent a finding in his favor, notwithstanding that she may have had a large interest in his success.

So, in

Upon an examination of the evidence in this case, it seems to me that the wife is singularly supported by the affidavit which she made, and which it is claimed upon the part of the appellants is a contradiction of her testimony in this proceeding.

It is further insisted that the conduct of the respondent in placing in the inventory the subject matter of the gift which is claimed in this proceeding, also tends to weaken the testimony which was given in support thereof. It appears from the evidence that the respondent consulted an attorney. What advice the attorney gave we do not know; but thereafter the respondent and wife made the affidavit referred to, and the money in bank was included in the inventory, which inventory was sworn to by him. Now, the fair inference to be drawn from these facts is that the respondent was advised that the facts which are now claimed to have constituted a gift of the moneys in bank were not sufficient to transfer the title;

Matter of Farian's Accounting.

and this being the condition of mind of these parties, the affidavits in question were sworn to by the respondent and his wife. In her affidavit she says that she saw the deceased hand her husband six savings bank books, and heard him tell her husband that he was a very sick man, and that if he should die all that was in the bank he would give to her husband, as he had no relatives living as he knew that deponent and her husband had taken care of him and had been good friends to him; and that he wanted him and his wife to have what little he had saved if he should die. This affidavit was made at a time when these parties evidently believed that such a transaction was insufficient to transfer the title. The only variation from this story in the evidence she gave upon the stand, perhaps, is the failure to identify the books as clearly as they are in the affidavit, and the testifying to the statement of the deceased that the witness and her husband had taken care of the deceased and had been good friends to him, and that he wanted him and his wife to have what little he had saved, if he should die. This variation was entirely immaterial; because it is manifest, taking the whole statement together as contained in the affidavit, that the gift was to be to the husband; and that the statement that the deceased wanted him and his wife to have what little he had saved, applied to the assumption upon the part of the deceased that the wife would enjoy what was given to her husband. It seems to me that if the wife was a credible witness her evidence could be and was sufficient to make out a complete gift causa mortis.

The result of holding that such a gift cannot be predicated upon the testimony of the wife is adding a new rule to the law of evidence, vis. that to establish a fact in reference to a gift causa mortis, evidence of parties entirely indifferent is necessary.

But I think, however, that upon the proof as it stands, there was one fact which was insufficiently established, and that is that the bank books which are now claimed by the

Manhattan Railway Co. v. Taber.

husband were all handed over to him at the time testified to by the wife. All that she saw was a package which the husband put in his pocket, and she did not see what she supposed to be that package for hours thereafter; and it was then in her husband's possession, and he opened it, and showed to her some bank books. But there is no evidence that she even then knew how many there were, or that they were the bank books in question. And there was ample opportunity upon the part of the husband to put into that package anything he pleased. And as a result the probative force of the testimony of the wife was fatally defective in her not being able to identify that which was handed to the husband at the time of the alleged gift. And for this reason it seems to me the gift was not established.

MANHATTAN RAILWAY CO. 7. TABER.

N. Y. Supreme Court, Special Term, First District; February, 1894.

1. Appeal; case on non-enumerated motions.] Where an appeal is taken from an order on a non-enumerated motion, a motion to dispense with the printing of any papers submitted upon the hearing of such motion should only be granted, if at all, if there can be no reasonable difference of opinion as to the immateriality of the papers whose printing is sought to be dispensed with.*

2. Motions and orders.] A special term held by another judge than the one who granted such order, has no power to give any direction as to what shall be contained in the printed papers upon an appeal from the order.

3. Appeal.] Where an appeal was taken only from so much of a final order which confirmed the award of the commissioners in a proceeding for the condemnation of real property as failed

* See note at the end of this case.

Manhattan Railway Co. v. Taber.

to provide that defendants recover costs; and the costs were denied merely upon the ground that defendants were not entitled to them as a matter of law,-held, that the printing of the minutes of the proceedings before the commissioners might be dispensed with.

4. The same.] Where an appeal was taken from an order in a proceeding by a railroad company to condemn real property, authorizing the plaintiff to continue in possession, and providing for a perpetual stay of all actions and proceedings interfering with plaintiff's possession, except so much of the order as authorized plaintiff to continue in possession; and the granting of such order had been opposed upon the ground that the court had no power to grant it, and also upon the ground that, if the court had the power, it would not be proper to exercise its discretion,-held, that the printing of the minutes of the proceedings before the commissioners could not be dispensed with, though defendants offered to stipulate that upon the appeal they would not contest the propriety of the commissioners' report or that of the order confirming it.

Motion to dispense with the printing of minutes on appeals from certain orders.

Proceedings were commenced by the Manhattan Railway Company against Henry M. Taber and others to acquire title to Nos. 137, 139 and 141 Pearl Street in the city of New York.

The defendants appealed from the three following orders, made in such proceeding:

(1) The order entered on November 28, 1892, upon the order to show cause granted by Mr. Justice Andrews, providing for a, perpetual stay of all actions and proceedings interfering with plaintiff's possession of the property, pursuant to Code Civ. Pro., § 3379, except so much of the order as authorizes the plaintiff to continue in possession of the property upon complying with the terms of the final order confirming the award.

(2) From the final order confirming the award, entered on November 27, 1893, in so far as the same fails to pro

Manhattan Railway Co. v. Taber.

vide that the defendants recover of the plaintiff the costs of proceeding, etc.

(3) From the order entered December 23, 1893, by Mr. Justice Ingraham, denying the defendants' motion to modify the final order so as to provide for costs, etc., and for an additional allowance.

Defendants offered to stipulate, if plaintiff would agree to the dispensing on these appeals with the printing of the minutes of testimony taken before commissioners, not to question such minutes on appeal nor that the report of the commissioners was properly confirmed on such record. The plaintiff declined to enter into the stipulation; and on January 12, 1894, the defendants moved at General Term for leave to dispense with the printing of such minutes, which motion was denied, the court directing that the defendants apply at Special Term to the judge who heard the motion to confirm and the motion for the stay.

The defendants then made this motion before Mr. Justice Andrews for leave to dispense with the printing of the minutes, etc.

John E. Parsons for the motion.

William H. Godden (Davies, Short & Townsend, attorneys), opposed.

ANDREWS, J.-Rule 3 provides that when any order on a non-enumerated motion is entered, the papers used or read on the motion on either side shall be specified in the order, and shall be filed with the clerk, unless otherwise ordered by the court, or the order may be set aside as irregular, with costs. Section 1353 of the Code of Civil Procedure provides that an appeal to the General Term from an order must be heard upon a certified copy of the notice of appeal, and of the papers used before the court or the judge upon the hearing of the motion, and Rule 41 requires that such papers shall be printed.

It appears by the papers that application was made to