Moore v. Dennis , 36 N.Y.S.2d 167 ( 1942 )

Per Curiam.

We think the court committed reversible error in receiving the testimony of the plaintiff relative to the contents of the deed of the Winter Park property alleged to have been given by Mrs. Dennis to the plaintiff in 1912 or 1913 and that she had showed the deed to others and as to improvements made to said property and other testimony of like import. This testimony involved personal transactions of an indirect nature between the plaintiff and Mrs. Dennis. The testimony was incompetent and inadmissible against the defendant who had derived his title to the property in suit from Mrs. Dennis. (Brayton v. Dager, 249 App. Div. 94; Matter of Blair, 99 id. 81; Kings County Trust Co. v. Hyams, 242 N. Y. 405.) We also think the decision in favor of the plaintiff is against the clear weight of the evidence. The fact that the plaintiff first claimed that the property belonged to the estate of Mrs. Dennis and brought action in favor of the estate to our minds substantially destroyed her present claim that the property in suit belongs to her individually. Mrs. Dennis made a deed of the farm to the defendant in 1910 and a deed of the Canisteo house to the plaintiff in 1912. Mrs. Dennis recorded these deeds in 1929 and this was the first that the plaintiff and the defendant knew about those deeds. The evidence indicates that the deed to the Winter Park property was never delivered to the plaintiff as claimed by her. This conclusion is strengthened by the fact that the plaintiff first claimed that the property in question belonged to the estate of Mrs. Dennis. Moreover, aside from alleged admissions of Mrs. Dennis, there is no evidence that she ever agreed to hold the proceeds of the sale of the Winter Park property in trust for the plaintiff.

The judgment should be reversed and a new trial should be granted.

All concur, Harris, J., in result in a separate opinion. Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.