App. Div.]

Third Department, November, 1911.

I am unable to agree with the prior decision of this court and think that the case was properly decided by the referee and the surrogate.

Judge Van Alstyne lived to be a man of quite some years. He was a well-informed man of affairs, very competent and very independent in his methods of dealing with his own property. He was a competent lawyer. It is difficult to understand and no reason whatever is advanced in the record why if he wished to make his wife a present of the amount in controversy, the amount that she had borrowed upon her notes, he did not cancel these deeds of trust and these notes and turn them over to her during his lifetime.

Various statements were testified to have been made by him to his wife and also made by him to his son and his wife's sister as to the fact that he had paid off his wife's debts upon her Washington real estate, but making allowance for the tender years of this son, who was about twelve years of age at the time he stated these statements were made to him, and the infirmities of memory of Mrs. Van Alstyne and her sister of conversations many of which had taken place many years before, the fact remains that he retained custody of these papers so long as he lived, that he received payment from his wife of the entire net income of this property and that there is lacking, aside from some of the things that he is said to have stated, an entire absence of any act upon his part that would look like a disposition to give this amount of property to his wife. Apparently by his will he intended to treat his two children and his wife as nearly equal as he could, favoring his wife somewhat in the disposition of the contents of his house. If the contention of the wife be sustained here a very uneven disposition was made by him of his property as between his children and his wife, as the wife would get a large portion thereof.

The widow was not in any event hurt or injured financially by the action of Judge Van Alstyne, even if he intended to retain said notes as his own. He took up her notes by purchase and she paid him therefor, not the full legal interest but all the income that she received from this particular property upon APP. DIV. -- VOL. CXLVII.

27

Third Department, November, 1911.

[Vol. 147.

which the deeds of trust to secure these notes were liens. Had he not done so she would have had, in order to pay the interest, to have advanced money for that purpose in addition to the income from the property. By the decision of the Surrogate's Court she has not been required to advance anything until she receives money from her husband's estate to pay the notes and the balance of the interest. In addition these notes to the trust company and to her father as well would have been due long years before and the principal might have been required to be paid at the time that they did become due, so she might and would have been in some way put to extra expense and trouble in paying them off or in seeking new loans at the time that they became due. All this was avoided by the course which her husband took.

If this can be sustained as a gift at all, it must be sustained as a gift inter vivos. In order to sustain such a gift, a delivery actual or symbolical must be made at the time of the gift. There was no delivery whatever. At the time of this hiring of the safe deposit box, Mrs. Van Alstyne did not even know that her husband at that time put these papers in the box, nor does she now know that he did so then; she did not see them, she did not see him put them in the box, nor did she see either the deeds or notes at that time, nor did she know that he had them at that time in his possession. The giving her of the key and taking the box in their joint names may very well have been for the convenience of Judge Van Alstyne in his advancing years, or that he took into consideration the probability of his death that his wife might have a key to find his will after his death. I cannot from that act find anything indicating a delivery on his part of these papers to his wife. (Matter of Bolin, 136 N. Y. 177; Slee v. Kings County Savings Institution, 78 App. Div. 535; Matter of O'Connell, 33 id. 483; Matter of Schroeder, No. 1, 113 id. 204, 207. See Young v. Young, 80 N. Y. 422, 430, where it is held: "To establish a valid gift, a delivery of the subject of the gift to the donee or to some person for him, so as to divest the possession and title of the donor, must be shown." The burden of showing this is on the person alleging or claiming the gift.)

Question is raised here as to whether any error crept into the

App. Div.]

Third Department, November, 1911.

record from the evidence admitted as to statements alleged to have been made by Judge Van Alstyne to his wife, and whether such statements were competent, an objection and exception having been taken under section 829 of the Code of Civil Procedure. There is some confusion in the record resulting from the introduction in the accounting before the surrogate of evidence given in a discovery proceeding by Mrs. Van Alstyne, instituted against her by the executor, and it is a little difficult to decide just how far she would be permitted (from the fragmentary way in which this evidence was introduced or sought to be before the referee) to testify as to such statements.

I think that much of the evidence that was introduced by her was not in reply to or any part of the transactions concerning which she was interrogated by the executor, and that the executor had not opened the door for the wholesale statements that she testified to as having been made to her by Judge Van Alstyne concerning the alleged payments of these notes or her indebtedness by him, and was, therefore, incompetent; but, assuming that all that is in the record is properly there, I still think that it falls far short of establishing a gift by Judge Van Alstyne of either these notes or the money which he used to purchase them with to Mrs. Van Alstyne. I can see no other way in which Mrs. Van Alstyne could sustain her claim that these notes were her property except by proving a gift, and the burden of proving the same is upon her.

For these reasons I think that the decree of the surrogate should be affirmed, with costs, and that the costs should be paid from the estate.

Decree, so far as it determines that the estate owns the notes and deeds of trust, and that Laura L. Van Alstyne is liable thereon, reversed upon the law and the facts, and it is adjudged that she is not liable to the estate therefor, and that her accounts shall not be charged therewith, and the decree of the surrogate is modified accordingly and further modified to give full effect to such modifications, and as so modified is in all respects affirmed, with costs to the said Laura L. Van Alstyne, to be paid from the estate.

Third Department, November, 1911.

[Vol. 147.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CAIUS A. WEAVER, Respondent, . WILLIAM W. FARLEY, as State Commissioner of Excise of the State of New York, Appellant.

Third Department, November 15, 1911.

Civil service-refusal of State Civil Service Commission to place the position of special agent in the non-competitive class - discharge of veteran - mandamus to compel reinstatement.

The refusal of the State Civil Service Commission to place the position of special agent of the Department of Excise in the non-competitive class is not so palpably erroneous as to justify the Appellate Division in interfering therewith, and consequently where the State Commissioner of Excise has assumed to dismiss summarily an incumbent of that position who is a veteran, a peremptory writ of mandamus will issue to compel the Commissioner of Excise to reinstate him.

APPEAL by the defendant, William W. Farley, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 21st day of June, 1911, directing the issuance of a peremptory writ of mandamus compelling the defendant to reappoint the relator as special agent of the Department of Excise.

A. M. Sperry, for the appellant.

Salisbury & Halter [Samuel H. Salisbury of counsel], for the respondent.

PER CURIAM:

The State Commissioner of Excise attempted to remove this relator from his position as special agent of the department without charges and without hearing. The Civil Service Commission had put the position in the competitive class. The relator was a veteran. Application was made by the State Commissioner to put these sixty agents in the non-competitive class. This was refused by the Civil Service Commission. The State Commissioner now asserts that the position cannot be lawfully put in the competitive class, because an examination therefor is not practicable. For many years an examination

App. Div.]

Third Department, November, 1911.

has been had and special agents selected from a list furnished by the Civil Service Commission. It is not suggested that this system has failed to provide competent and proper special agents. The appellant upon this appeal relies upon the case of People ex rel. Sweet v. Lyman (157 N. Y. 368) as holding that an examination for a special agent was impracticable, and, therefore, that the Civil Service Commission was not authorized to put that office in the competitive class.

As the law stood at that time the preference given to honorably-discharged soldiers and sailors in the civil service of the State was made to apply to the position of private secretary or deputy of an official or department or to any other person holding a strictly confidential position." (See Laws of 1896, chap. 821.) The same Legislature which passed that law provided for the appointment of these special agents of the Excise Department, and declared in the statute that they should be deemed confidential agents of the Commissioner. (See Liquor Tax Law [Gen. Laws, chap. 29; Laws of 1896, chap. 112], § 10.) That special provision of the statute was one of the grounds upon which the decision in People ex rel. Sweet v. Lyman proceeded. But since that time the Civil Service Law has been re-enacted, so that now a veteran's right is not made to depend upon the question whether the position is a confidential one. (See Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) Furthermore, under the Liquor Tax Law as it stood in 1896, these special agents were given powers as representatives of the Commissioner of Excise. For instance, upon making affidavit before the district attorney of a county, the district attorney was required, under section 37 of chapter 112 of the Laws of 1896, to prosecute for violations of the act. They were thus left to decide whether it was proper that actions should be brought. This power has been taken away from them, and now they are simply to act under the direction of the State Commissioner of Excise. (See Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39], § 7, as amd. by Laws of 1909, chap 281; Id. § 40) In view of these changes in the law we do not deem the decision referred to as controlling upon this question, and under the decision of People ex rel.