Flood v. Cain

New York Supreme Court

Flood v. Cain

29 N.Y.S. 156, 78 Hun 378, 85 N.Y. Sup. Ct. 378, 60 N.Y. St. Rep. 719

CourtNew York Supreme Court

DecidedMay 18, 1894

StatusPublished

Cited by3 cases

This text of 29 N.Y.S. 156 (Flood v. Cain) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flood v. Cain, 29 N.Y.S. 156, 78 Hun 378, 85 N.Y. Sup. Ct. 378, 60 N.Y. St. Rep. 719 (N.Y. Super. Ct. 1894).

Pincite

Opinion

FOLLETT, J.

By a deed dated September 30, 1881, acknowledged November 19, 1884, and recorded January 27, 1885, the plaintiff conveyed certain real estate in the city of New York to Peter-Cain for the recited consideration of one dollar. From that time-on, the grantee retained the title, and collected the rents, through, the plaintiff, until January 7, 1890, when he died, devising the property to the defendants in this action. On the 15th of October, 1890,. this action was begun, seeking to set aside the conveyance upon tbeground that it was executed by the grantor in apprehension of death, and that the grantee agreed to reconvey it to her in case she survived. It will be observed that nearly six years elapsed between the date of the deed and the death of the grantee, and no proceedings were taken to compel a reconveyance. The only question in this action is one of fact,—whether the conveyance was a deed of gift in anticipation of death. The parties to the deed were [157]*157brother and sister, and it appears from the record that for several years preceding the death of Peter Cain they had various transactions in respect to their property,—conveyances from one to the other. The burden of establishing that this was a conveyance causa mortis was upon the plaintiff. The learned judge at special term held that, upon the evidence, the plaintiff failed to establish the cause of action alleged in her complaint. Assuming that all of the evidence given upon the trial is contained in the record, we cannot say that this decision is contrary to the weight of evidence. But there is an insurmountable difficulty in considering the question as to whether the decision is contrary to the weight of evidence. So far as we can discover, the case contains no statement that it contains all of the evidence, and, in the absence of such a statement, this court will not review a question of fact. The case does not seem to have been settled and ordered filed by the trial judge, and, no error appearing in the judgment roll, the judgment should be affirmed, with costs. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

FOLLETT, J.

By a deed dated September 30, 1881, acknowledged November 19, 1884, and recorded January 27, 1885, the plaintiff conveyed certain real estate in the city of New York to Peter-Cain for the recited consideration of one dollar. From that time-on, the grantee retained the title, and collected the rents, through, the plaintiff, until January 7, 1890, when he died, devising the property to the defendants in this action. On the 15th of October, 1890,. this action was begun, seeking to set aside the conveyance upon tbeground that it was executed by the grantor in apprehension of death, and that the grantee agreed to reconvey it to her in case she survived. It will be observed that nearly six years elapsed between the date of the deed and the death of the grantee, and no proceedings were taken to compel a reconveyance. The only question in this action is one of fact,—whether the conveyance was a deed of gift in anticipation of death. The parties to the deed were [157]*157brother and sister, and it appears from the record that for several years preceding the death of Peter Cain they had various transactions in respect to their property,—conveyances from one to the other. The burden of establishing that this was a conveyance causa mortis was upon the plaintiff. The learned judge at special term held that, upon the evidence, the plaintiff failed to establish the cause of action alleged in her complaint. Assuming that all of the evidence given upon the trial is contained in the record, we cannot say that this decision is contrary to the weight of evidence. But there is an insurmountable difficulty in considering the question as to whether the decision is contrary to the weight of evidence. So far as we can discover, the case contains no statement that it contains all of the evidence, and, in the absence of such a statement, this court will not review a question of fact. The case does not seem to have been settled and ordered filed by the trial judge, and, no error appearing in the judgment roll, the judgment should be affirmed, with costs. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

29 N.Y.S. 156, 78 Hun 378, 85 N.Y. Sup. Ct. 378, 60 N.Y. St. Rep. 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flood-v-cain-nysupct-1894.

Opinion

Related

Cite This Page — Counsel Stack