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Dunleavey v. Dunleavey

84 N.Y.S. 562 Court N.Y. App. Div. Decision date 1903-11-13 English

Delivered by HIRSCHBERG, J.

Contents

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p. 562
DUNLEAVEY v. DUNLEAVEY et al.
(Supreme Court, Appellate Division, Second Department.
November 13, 1903.)

Headnote

1. Appeal prom Judgment—Questions Presented—Absence op Exceptions-
Where a judgment is entered upon a decision stating separately the facts found and the conclusions of law, and no exceptions were taken either on the trial or to the decision, and the decision is supported by the evidence, an appeal from the judgment presents no questions for consideration.
Appeal from Special Term, Nassau County.
Action by Elizabeth Dunleavey against William H. Dunleavey and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
p. 563
W. Tazewell Fox, for appellant.
H. A. Monfort, for respondents.

This appeal presents nothing for review. The action is brought to procure the cancellation of a deed made by the father (now deceased) of the plaintiff and of the defendant William Dunleavey on the ground that the grantor was of unsound mind at the time the deed was executed, and on the further ground that its execution was procured by fraud practiced and undue influence exerted by the defendants. The learned trial justice has found, on sufficient evidence, that the grantor was of sound mind and understanding at the time the deed was executed, acknowledged, and delivered; that the deed was not procured by the defendants by the exercise of fraud, deceit, artifice, or imposition, but that, on the. contrary, it was the free, unconstrained, and voluntary act of the grantor. The appellant took no exception upon the trial. The judgment is entered upon a decision which states separately the facts found and the conclusions of law, and no exception has been filed to the decision. The decision being abundantly supported by the evidence, the appeal from the judgment presents no questions for consideration. Lanier v. Hoadley, 42 App. Div. 6 , 58 N. Y. Supp. 665 ; Clements v. Beale, 53 App. Div. 416 , 417, 65 N. Y. Supp. 1093 ; Donellan v. Ketchum, 78 App. Div. 144 , 79 N. Y. Supp. 484 ; Piltz v. Yonkers Railroad Co., 83 App. Div. 29 , 82 N. Y. Supp. 220 . The judgment should be affirmed.

Judgment affirmed, with costs. All concur.

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