Greene v. Roworth

• Decision Date: 23 April 1889
• Parties: GREENE et al. v. ROWORTH et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 462

21 N.E. 165

GREENE et al.

v.ROWORTH et al.

Court of Appeals of New York.

April 23, 1889.

Appeal from common pleas of New York city and county, general term.

Action originally brought by William Roworth, to vacate transfers of certain property made by him to his sons, Joseph G. and John W. Roworth. Pending the decision, William Roworth died, and the action was revived in favor of the present plaintiffs, Emma T. Greene and others. A judgment for plaintiffs was reversed in part and affirmed in part on appeal to the general term of the supreme court, and defendants now appeal to this court.

Thomas Darlington, (Samuel Jones, of counsel,) for appellants.

J. M. & A. H. Van Cott, for respondents.

RUGER, C. J.

The reversal by the general term of so much of the judgment of the special term as awarded relief to the plaintiffs in respect to the conveyance of personal property, eliminated from the case all questions predicated upon rulings in relation thereto. This determination left the issues in respect to the validity of the conveyances of two parcels of real estate as the only subjects of controversy on the appeal to this court.

The evidence of the exercise of fraud and undue influence by the defendants Joseph and John Roworth, in obtaining from their father, William Roworth, deeds of such property, was quite sufficient to sustain the findings of the trial court respecting the same. The evidence tended to show that for many years prior to January, 1877, William Roworth and his son Samuel carried on the business of manufacturing confectionery at 354 Pearl street in the city of New York, under the firm name of Samuel W. Roworth & Co., and had established a prosperous business. William Roworth was then the owner of a one-half interest in the assets of said firm; of a three-quarters interest in the lot and building in which the business was carried on; of a house and lot in Devoe street, Brooklyn, and another in Fifth street in the same city; a mortgage on property in Detroit for $2,000; and deposits in bank of about $500. In January, Samuel W. Roworth died, devising his interest in the assets of said firm equally to the defendants, his two brothers, John and Joseph, and to his two sisters. Between the time of Samuel's death, in January, 1877, and March, 1880, the defendants John and Joseph had obtained from William Roworth, without consideration except a promise to pay him a small sum weekly from the partnership business, all of the property possessed by him. This was effected by transfers and conveyances of such property, or its proceeds, made successively at different times by William Roworth to one or both of said defendants, between the dates aforesaid. At the time of the death of Samuel the two defendants were each upwards of 45 years of age, and had been unsuccessful in the business operations theretofore carried on by them respectively, and were not then possessed of any property. They were supporting themselves as workmen, upon a small salary, in the employ of Samuel W. Roworth & Co. In 1877, William Roworth was 76 years of age, and had become quite infirm in health. His memory had greatly failed, and he was practically incapable of taking an active and responsible part in the management of his business, although he continued for some time thereafter to attend at the store and factory, and make entries in the books, draw up bills, and render other small services which he had been theretofore accustomed to perform. He had become very nervous and susceptible, being frequently overcome by emotion, and easily affected to tears, and subject to the influence of those surrounding him. He had an aged wife, who survived him, and was dependent upon him for support. The findings of fact made by the trial court as the basis of its judgment with respect to the two deeds which remain as the subject of controversy on this appeal are substantially the same, and that one relating to the transfer of No. 354 Pearl street, New York, reads as follows: That ‘the said William Roworth, at the time of the execution and acknowledgment of said instrument, did not know or comprehend the legal effect of the said instrument,’ and that its ‘execution, acknowledgment, and delivery * * * were procured by fraud and undue influence, exercised upon said William Roworth by the said defendants, Joseph G. Roworth and John W. Roworth, and by their taking advantage of his age and infirmities, and his confidence and trust in them, and his dependence and reliance upon them; and the signing and delivery of the same by William Roworth was reckless and improvident, was done without proper advice of counsel, and upon a grossly inadequate consideration, and while he was acting under the influence of said defendants, unduly exercised upon him.’ The evidence, as we have said, fully supports this finding, and, indeed, we are of the opinion that the proof would not have justified the contrary conclusion. In the consideration of this case the court cannot shut its eyes to the significant fact that William Roworth has been substantially stripped of all of his property by some one; and however or to whomever it passed originally, either the property or its proceeds found their way to a common end, viz., to the benefit and possession of the defendants. Whatever the defendants advanced, if anything, towards the acquisition of any part of the property, has been for their own advantage, and substantially from funds which they had received from their father.

The only material question in this case arises over an alleged inconsistency between the findings made by the trial court as the basis of its judgment, and a single one also found by the court out of 105 special requests to find on questions of fact submitted by the defendants at the close of the trial. It is undoubtedly an established rule of this court, where findings of fact, made by the court or referee, which are material to the determination of the case, are irreconcilably conflicting, that we will be governed by that finding which is most favorable to the party appealing; but this rule presupposes such a difference in the findings. So, far, therefore, as these findings are conflicting, it is the duty of the court to endeavor to reconcile them, and give to each some office to perform. It is only when this cannot, by...