Flood v. Cain — 60 N.Y. St. Rep. 719

Majority

p. 719

Rosa Flood, App’lt, v. Sarah Cain, Individually and as Guardian, etc., et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 18, 1894.)

Headnote

1. Gift—Causa mortis—Burden of proof.

The burden of proof, in an action to set aside a deed on the ground that it was a gift causa mortis, is on plaintiff to establish such fact.

p. 720

2. Appeal—Case—Statement.

A question of fact will not be"reviewed in the absence of a statement in in the case that it contains all the evidence.

Appeal from, a judgment dismissing the complaint on the merits.

Brooke, O'Sullivan & Brooke, for app’lt; James O'Neill, for resp’ts.

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 the ground 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 brother 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.