Cotes v. Cotes

47 N.Y.S. 922

Opinions

O’BRIEN, J.

To prove the issues made by the pleadings, the burden was upon the plaintiff; and, from the summary of the testimony, it will be seen that there was no such preponderance of evidence as would justify our disturbing the findings of the trial court, which were adverse to the plaintiff. Not only did the court have the witnesses before it, and from their demeanor upon the stand and manner of testifying could determine their relative credibility, but, considering the fact that the property belonged originally to the defendant’s father, the inference arising therefrom supports the defendant’s contention that the gift to the plaintiff, her husband, though absolute in form, was not intended exclusively for his benefit, but that she was to derive equal advantage from it. To this must be added the conduct of the parties in dealing with the property and the mortgage that was taken back upon the sale to third parties, which, so far as it tends to corroborate either, supports the version of the transaction as given by the defendant. Upon the dear-cut questions of fact which arose upon the testimony of the plaintiff and the defendant, it cannot be concluded that the trial court erred in holding, in effect, that the plaintiff did not sustain the burden of proof, and that there was not sufficient evidence to sustain the finding in favor of the defendant.

There are several exceptions presented, the principal ones of which relate to rulings upon evidence, growing out of the right accorded to the defendant of testifying to conversations and communications with her father—the plaintiff being present—-as to the object and purpose for which the original conveyance of the property was made to the plaintiff. Such evidence, it is claimed, was in violation of section 829 of the Code of Civil'Procedure. Apart from its appearing that such testimony was as to conversations with the-defendant’s father while the plaintiff was present, the right to introduce it was given to the defendant by reason of the fact that the plaintiff himself opened the door for the introduction of similar evidence as to the person from whom, and the manner in which, he had secured the property out of which this controversy has arisen. 1

As we can find no valid ground for disturbing the decision made below, the judgment entered thereon should be affirmed, with costs. All concur.