Hall v. . O'Brien
New York Court of Appeals
Appeal from, a judgment, entered March 11, 1914, upon ¡m order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The burden was on defendant to prove the gift .by clear and convincing evidence.
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Appeal from, a judgment, entered March 11, 1914, upon ¡m order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The burden was on defendant to prove the gift .by clear and convincing evidence. This burden he failed to meet. The relationship of the parties being in their nature confidential, the transaction will be scrutinized…
1Opinion of the CourtCuddeback, J.
This is an action to foreclose a mortgage and the defense is that the plaintiff had made a gift of the mortgage and the bond which accompanies it to the defendant. The case was first tried before a jury, to which the court submitted the question whether or not there had been a gift as alleged. The jury was unable to agree upon a verdict. The court thereupon discharged the jury and took upon itself the burden of deciding the case. The court made findings of fact and" of law in favor of the plaintiff on which was entered a judgment of foreclosure and sale in the usual form.
The Appellate…
2Cases cited5 opinions
- Gannon v. . McGuireNew York Court of Appeals · 1899
- Gray v. . BartonNew York Court of Appeals · 1873
- Westerlo v. . De WittNew York Court of Appeals · 1867
- Nesbit v. . LockmanNew York Court of Appeals · 1866
- Acme Realty Co. v. . SchinasiNew York Court of Appeals · 1915
3Cited by7 opinions
- In Re the Estate of HousmanNew York Court of Appeals · 1918
- Fagan Ex Rel. Fagan v. SummersWyoming Supreme Court · 1972
- Saltzsieder v. . SaltzsiederNew York Court of Appeals · 1916
- Village of Bath v. . McBrideNew York Court of Appeals · 1916
- Brophy v. HaeberleAppellate Division of the Supreme Court of the State of New York · 1927
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