Devlin v. Greenwich Sav. Bank

• Decision Date: 24 February 1891
• Citation: 125 N.Y. 756,26 N.E. 744
• Parties: DEVLIN v. GREENWICH SAV. BANK et al.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 756

26 N.E. 744

DEVLIN

v.GREENWICH SAV. BANK et al.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from common pleas of New York city and county, general term.

Abram Kling, for appellants.

Wm. Henry Arnoux, for respondent.

PECKHAM, J.

The general term of the New York common pleas reversed the judgment herein entered in favor of the defendants upon the report of the referee, upon the facts as well as upon the law, and granted a new trial. The defendants appealed to this court from such order. In such case we must review the determination of the general term upon the questions of fact as well as the questions of law. Beebe v. Mead, 33 N. Y. 587; Code Civil. Proc. § 1338. The principles upon which such review of the facts is entered upon here have been lately stated in the case of Baird v. Mayor, etc., 96 N. Y. 567. We gather from that case, and from those cited by the learned chief judge in the course of his opinion, that to justify the reversal of the finding of a referee or a single judge it must appear that such findings are against the weight of proof, or that the proofs so clearly preponderate in favor of a contrary result to that reached by the referee that it can with a reasonable degree of certainty be said that the trial court erred in its conclusions. As said by FOLGER, J., in Crane v. Baudouine, 55 N. Y. 256, the question is whether we are so certain that the referee was in error upon the facts as that we will assume to review his judgment. The fact that the trial court has the immense advantage of seeing the witnesses as they testify, and can thus observe their general intelligence, their demeanor while under examination, and the presence or absence of fairness and candor,-all this always weighed very strongly with appellate courts when asked to review and reverse the findings of fact by a court or referee. The plaintiff herein claimed to recover the amount of the deposit in the bank on the ground that her uncle, its former owner, had given it to her while he was lying ill at his house in Pennsylvania, and in expectation of his death, which occurred within a short time after the alleged gift was made. In the technical language of the law she claimed the money by reason of an alleged gift mortis causa from the former owner. 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. Grey v. Grey, 47 N. Y. 552;Grymes v. Hone, 49 N. Y. 17;Lewis v. Merritt, 113 N. Y. 386, 21 N. E. Rep. 141. Coming to a review of the findings of fact by the referee with these rules in our minds, we are compelled to say that in our opinion the general term erred in reversing such findings. The case has been read carefully over, and all the evidence on both sides has been thoroughly reviewed, and we have come to the conclusion that the referee was entirely justified in his refusal to find that any gift had been made to the plaintiff of the property in question. It cannot be said that his findings were against the weight of evidence, or that the proof clearly preponderated in favor of a contrary result. It would serve no beneficial purpose to go over the evidence, and point out in detail how, in our judgment, the plaintiff fails to make out a clear case. It is enough to say that the story as told by the husband, taken as a whole, with all the accessories of place, time, circumstance, and probability, is such as to warrant the referee, or any other tribunal, in refusing to give credence to it. The occasion when the gift was made he describes with confidence as to the entire details. He does so in his first direct examination, and in his cross-examination, and is particular in his statement that the gift was delivered on the very same day and occasion as the bonds were given for the purpose of being sold by the witness, and the proceeds returned to the owner. Subsequently, after the case before the referee had been adjourned, the witness comes on the stand, and wholly repudiates that part of his evidence, desires to correct it, and then proceeds to say that the gift was made on an entirely different occasion from that on which the bonds were produced for him to take to New York and sell, and that it was subsequent to that time, when the donor was in another bedroom in another part of the house, that the bank-books were given to the wife of the witness, the present plaintiff. The story of both husband and wife as to the almost complete silence they had maintained towards each other on this subject from the time of the gift for a period of almost 14 years is, in itself, most unnatural. They lived together, and, as the evidence...