109 N.Y.S. 148 | N.Y. App. Div. | 1908
Lead Opinion
This action was tried by stipulation as a common-law action before the court without a jury. The parties are all of the surviving children of Mees, deceased, who died intestate leaving them his sole heirs at law. Mees died the owner and seized of realty called the Sackett street property and the owner of realty called the Atlantic avenue property which he held by deed to him as trustee for his children Sophia and George. Shortly after Mees’ death all of the parties, an attorney at law and friends, met in Mees’ house. Mees’ strong box was opened and when the deed to the Atlantic avenue property was found therein, the attorney handed it to
The record sustains the facts found. Assuming that such promise was made I am of opinion that there was no consideration shown. In Rector, etc., v. Teed (120 N. Y. 583) Vann, J., for the court says (pp. 586, 587) : “ £ A valuable consideration may consist of some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other/ (3 Am. & Eng. Encyclopedia of Law, 831;
I think that the judgment must be affirmed, with costs.
Gaynob, Eich and Milleb, JJ., concurred; Hookee, J., read for reversal.
Ninth English probably intended.— [Ref.
Dissenting Opinion
The circumstances surrounding the opening of the strong box after decedent’s death, and the finding there of a deed running to the defendants and the conversation then between the children, seem, to me such as to present a situation where there was at least color of a valid claim by the plaintiffs, by reason of their heirship, to the Atlantic avenue property; one of these circumstances is that the box where the deed was found belonged to the decedent, and it might well be doubted whether there had ever been a delivery of the deed before the grantor’s death, which was necessary to pass title ; if such claim was open to be urged, there was consideration for the promise. The judgment should be reversed.
Judgment affirmed, with costs.