Saltzsieder v. Saltzsieder

• Decision Date: 28 December 1916
• Citation: 219 N.Y. 523,114 N.E. 856
• Parties: SALTZSIEDER v. SALTZSIEDER et al.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 523

114 N.E. 856

SALTZSIEDER

v.SALTZSIEDER et al.

Court of Appeals of New York.

Dec. 28, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Irma Saltzsider by Oscar Wagner, her guardian ad litem, against Marie Saltzsieder and others, who impleaded Frederick W. Saltzsieder and others. From a judgment of the Appellate Division (167 App. Div. 801,153 N. Y. Supp. 78), reversing a judgment for the plaintiff, on the appeal of the impleaded defendants, and directing a judgment on the merits for the impleaded defendants, the plaintiff and defendant Marie Saltzsieder appeal. Judgment of the Appellate Division reversed, and that of the Special Term affirmed.

Robert E. Deyo, of New York City, for plaintiff-appellant.

Richard H. Clarke, of New York City, for defendant-appellant.

Leo C. Weiler, of New York City, for respondents.

COLLIN, J.

The plaintiff seeks and was awarded by the Special Term a judgment establishing the invalidity and cancellation of an instrument purporting to be a conveyance of real estate by Frederick W. Saltzsieder to his sons, Frederick W., Walter H., and Herbert G. Saltzsieder. The Appellate Division by an unanimous decision reversed the judgment, and held that the instrument was valid and effective.

While the Special Term and Appellate Division are in disagreement as to certain findings of fact, they are not as to these: On May 21, 1898, Frederick W. Saltzsieder, the father, was engaged to be married to the appellant, Marie Saltzsieder, then Marie Schneider. He had by a former marriage the three sons already named, who were infants. He was 47 years old. On that date he duly signed, sealed, and acknowledged the conveyance under consideration. It was, in form, a full covenant warranty deed, purporting to convey to the sons the real estate in question, which was then owned by him. At the same time he duly executed his last will and testament, which among other things, bequeathed to Marie Schneider, in case she became his wife, $25,000, to be received in lieu of dower, and gave the residue of his estate to his three sons and subsequently born children, if any. The instruments were prepared by and were executed at the same time in the presence of his attorney, William C. Timm. Immediately after their execution, Saltzsieder told Timm to hold the deed until Saltzsieder's death and hand it over then to his sons. At the same time he handed over the will to Timm, who at once placed the instruments together in an envelope, and so kept them in his office until after the death of Saltzsieder on March 13, 1913, when he delivered the alleged deed to the sons. Neither of them had theretofore any knowledge of its existence. On May 26, 1898, Saltzsieder and Marie Schneider married, and the plaintiff, born May 10, 1899, is their only child. In April, 1902, Saltzsieder executed another will, the contents of which are unknown. The instrument which became in fact his last will was dated October 18, 1911, was probated April 4, 1913, and gave, after revoking all former wills, certain legacies payable from his personalty, and all the remainder of this estate in trust, to pay one-third of the net income to his ‘beloved wife,’ the balance of the net income to his four children. It directed the division, upon the death of his wife, of the corpus of the trust fund among the four children. Saltzsieder executed two mortgages upon the real estate, in which his wife joined; the first, on October 29, 1903, the second, on May 3, 1911, aggregating $40,000 which were liens in that amount at the time of his death. In connection with each mortgage he made an affidavit in writing, stating that:

‘The said mortgaged premises are free, clear, and unincumbered of and from any and all claims, liens, and demands of every name, nature and kind whatsoever. * * * This affidavit is made at the special instance and request of the mortgagee that she may, on the faith of all the representations and statements herein contained, advance to deponent the said sum of money in said mortgage named.’

Between May 21, 1898, and his death, March 13, 1913, he made in his name as the lessor five different leases of the property and exercised all the acts incident to the ownership and possession of improved real estate. He paid taxes and interest on the mortgages on the property, paid from his own funds for such repairs as the tenants were not required to make, and collected the rents and appropriated the same to his own use. In a written agreement of April 6, 1912, canceling a lease made by him, he recited that he ‘owned the premises in question.’

Other findings of the Special Term were, in substance: Saltzsieder at all times retained control of the alleged deed and did not deliver it to Timm as agent of the grantees; when he deposited the instrument with Timm he intended that such deposit should not constitute a delivery to Timm, and that the custody and control of said deed and property should remain in himself; by the execution of his will of October 18, 1911, he intended to and did revoke the agency of Timm by destroying the subject-matter of said agency. The Appellate Division reversed those findings ‘as without any evidence to support them,’ and found affirmatively that the intent of Saltzsieder was that the said instrument should be delivered by Timm to the grantees named in it upon his death and should by reason of such delivery operate to transfer the title of the premises to the grantees, and he did not reserve any control of or right to recall the said deed; that the grantees accepted the delivery of the same to them by the said Timm. The Special Term made many and elaborate conclusions of law, some of which, perhaps, are not essential to the judgment directed by it or supported by its findings of fact. Its judgment is, however, upheld by those conclusions which have support in the findings. All of its conclusions of law were reversed ‘as unwarranted.’ The Appellate Division found as conclusions of law that the alleged deed constituted an executed and irrevocable gift to the grantees whereby the title of the real estate passed to the grantees through the delivery by Timm.

[1] It is obvious that the findings of fact of the Special Term, which were reversed by the Appellate Division, were essential to the judgment of the Special Term. Because they were reversed ‘as without any evidence to support them,’ and not through a consideration of conflicting evidence or inferences, the correctness of the reversal is a question of law which we are bound to review.

[2] The rule that original findings of the Appellate Division, supported by evidence, are conclusive upon us (Acme Realty Co. v. Schinasi, 215 N. Y. 495, 109 N. E. 577, L. R. A. 1916A, 1176;Ga Nun v. Palmer, 216 N. Y. 603, 111 N. E. 223;Hall v. O'Brien, 218 N. Y. 50, 112 N. E. 569) is not applicable here, because the...