102 A.D. 383 | N.Y. App. Div. | 1905
Rosa Absalon, the plaintiff in this action, was, on the 21st day of January, 1902, the owner of certain premises in the borough of Brooklyn, fully described in the complaint. On that date she made, executed and delivered to the defendant in this action a full warranty deed of such premises, without any immediate payment of a consideration, though the deed recites a consideration of five dollars, and this action is brought to set aside such deed, the material allegation of the complaint being as follows: “ That the plaintiff being very sick and feeble and under the doctor’s care, and not expected to live, and being under the influence of morphine and by reason thereof incapacitated from attending to business, the defendant on or about the 21st day of January, 1902, fraudulently taking advantage of the plaintiff’s said incapacity, procured her to sign a certain writing wfithout paying her any consideration, therefor, and. which writing the defendant, Rudolph Sickinger, falsely and fraudulently represented to the plaintiff to be her last will and testament.”
The plaintiff is a woman fifty-nine years of age, and has supported her invalid husband by conducting a candy store, and subsequently by keeping boarders. On the day in question it is conceded that
There was no amendment of the complaint suggested upon the trial, and the effort of the court to afford relief upon a different basis from that set forth in the complaint, while creditable to an individual sense of justice in the particular case, is not in accord with the established practice of our courts; the rule is still extant that the plaintiff must recover secundum allegata etprobata. (Brightson v. Claflin Co., 180 N. Y. 76, 81, and authorities there cited.) But assuming that the complaint might be amended, or be deemed to be amended in accord with the evidence, there is absolutely no evidence in this case of any element of undue influence. On the
In Barnard v. Gantz (140 N. Y. 249), relied upon by the learned court, the party making the transfer was dealing with her son-in-law, who had been her confidential adviser and agent, and with her own son. The court held that the relations existing between the parties was such as to bring them within the equitable rule which casts upon the parties benefited by the transaction the burden of showing that the transfer was voluntary and the intelligent act of the party who made it, and that its nature and effect were fully understood. (See p. 256.) In that case the woman was eighty years of age, and the transaction was complicated by the making and execution of a will at the same time, and the relations were undoubtedly such that Mrs. Crouse had a right to rely upon their acting in absolute good faith. In the case now before us the plaintiff injected into her testimony, and the learned court refused to strike out on motion, a declaration to the effect that the defendant, while living with the plaintiff, “robbed me so much, stole so much,broke me, I could not keep no candy store any more,” and while this was undoubtedly improperly in the case, it serves to show that the plaintiff had no reason to rely upon the defendant. The plaintiff, as between herself and the defendant, had a perfect right to give away this property if she chose to. There is no evidence in the case that the defendant ever made any request of her to, give him the property, or that he ever attempted to influence her in its disposition. His only relation to the transfer, so far as the evidence discloses, is that he went to Mr. Benedict, at the request of the plaintiff, for the purpose of procuring the services of Mr. Benedict in drawing the deed, and the court believed that Mr. Benedict, who must be presumed to be a reputable member of the legal profession, told the truth in regard to what transpired at the time of executing the deed. Mr. Benedict had performed other services for the plaintiff, and if she did not understand the document or its pur
A careful reading of the evidence convinces us that the plaintiff intended to convey this property to her nephew in consideration of his services during the time that he lived with her, and for the purpose of placing it beyond the power of her stepson to reach any part of the same after her death, and that the suggestion of fraud in substituting a deed for a will occurred to the plaintiff after the latter had formed a prejudice against the defendant’s wife. But, be this as it may, after the plaintiff made the alleged discovery that the instrument was a deed rather than a will, she appears to have remained entirely passive. She made no suggestion of this alleged fraud when she went to Mr. Benedict and asked him if he could not set the deed aside, and she subsequently accepted a paper signed by the defendant, in which the latter, for a valuable consideration, undertook, under specified conditions, to take care of plaintiff’s husband during the remainder of his life. She accepted this with a full knowledge of the facts, if they were as she claims, and this would appear rather as a ratification of the alleged fraud than as an evidence that the defendant was willing to deprive the plaintiff of the means of caring for her husband.
The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.
Hirschberg-, P. J., Bartlett and Miller, JJ., concurred; Hooker, J., not voting.
Judgment reversed and new trial granted, costs to abide the final award of costs.