Majority
p. 897Carpenter v. Mosher. (Supreme Court, General Term, Second Department. May 12, 1890.) Argued before Barnard, P. J., and Pratt, J.
Headnote
Appeal—Weight op Evidence—Trial by Court.A decision on a question oí fact by a judge, on a trial without a jury, will not be disturbed on appeal where the testimony is evenly balanced.
Appeal from special term, Westchester county.
Action by An na Theall to set aside conveyances executed by her to defendant, Carrie M. Mosher, upon the ground of fraud and undue influence. The defense was that the deeds were given in consideration of love and affection, and of an agreement to support plaintiff and her husband during their lives. There was judgment for plaintiff. Defendant appeals. After the taking of the appeal, plaintiff died, and her executor, George W. Carpenter, was substituted plaintiff.
G. O. & L. S, Hulse, for appellant. John H. Clapp, for respondent.
The ease presents a fair question of fact, with abundant evidence to sustain the decision. As the trial judge had the advantage of seeing the witnesses, it would be manifestly unwise to interfere with his conclusions in a case where the testimony is so evenly balanced. It may also be remarked that the burden of proof rested upon the beneficiary. Case v. Case, 1 N. Y. Supp. 714 . The case of Sweet v. Bean, 67 Barb. 91 , is also in point; and the criticism made upon the agreement in that case, as not containing the stipulation for support of the grantor, is equally applicable here. The judgment must be affirmed, with costs.
Cases cited
- Sweet v. Bean 67 Barb. 91 p. 897