
    Elizabeth M. Aldridge, App’lt, v. Frederick Aldridge, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 27, 1890.)
    
    1. Appeal—Case.
    Where the case on appeal contains an exception to a certain finding of fact upon conflicting evidence by the court but no statement that all the evidence given upon the trial is contained within it, the facts are not before the general term and only questions of law can be considered, and a reversal on questions of both law and fact is error.
    2. Same.
    The exception to the finding of fact and the absence of the certificate in the case upon appeal is notice to respondent that the appellant intends to raise on the appeal questions of law only, and the point need not be taken at general term that the case is to be decided upon questions of law.
    '3. Same—Reversal.
    An appellate tribunal is not warranted in reversing upon.the sole ground that in its opinion the trial court should have reached a different conclusion upon conflicting evidence.
    Appeal from an order of the general term of the second judicial department, reversing a judgment entered upon the decision of the special term, and granting a new trial.
    The action was brought to set aside two deeds, which transferred certain real estate in the city of Brooklyn from the plaintiff to the defendant
    The grounds of the action were that the deed from the plaintiff was procured by undue influence and at a time when she was sick and not conscious of the nature and character of her acts. The parties were husband and wife.
    
      Josiah T. Marean, for app’lt; Samuel P. Potter, for resp’t.
    
      
       Reversing 14 N. Y. State Rep., 516.
    
   Brown, J.

The trial court found upon conflicting evidence that the deed from the plaintiff to George E. Adams was procured from her by the defendant and said Adams by fraud and undue influence, practiced by them upon her, and that at the time she executed the same her condition of mind was such that she was not conscious of the nature of her act, and gave judgment in accordance with the prayer of the complaint.

The general term reversed the judgment and granted a new trial, and has certified in its order that such reversal was on questions of both law and fact.

We are of the opinion that it was error for the general term to reverse the judgment upon the record before it. The case contains an exception to the finding I have quoted, but no statement that all the evidence given upon the trial is contained within it.

The facts were not, therefore, before the general term for review, and the only questions it could properly consider were those of law. Halpin v. Phœnix Ins. Co., 118 N. Y., 165; 28 N. Y. State Rep., 788; Brayton v. Sherman, 28 N. Y. State Rep., 854; Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479; Howland v. Howland, 20 Hun, 472; Spence v. Chambers, 39 id., 195; Davis Sewing Machine Co. v. Best, 50 id., 76; 23 N. Y. State Rep., 876; Wellington v. Continental Cons. & Imp. Co., 52 Hun., 408; 24 N. Y. State Rep., 678; Murphy v. Board of Education, 53 Hun, 171; 25 N. Y. State Rep., 154.

It is said by the respondent that this point was not taken at the general term. But it was not necessary that it should be raised there. The exception to the finding of fact, and the absence of the certificate in the case on appeal, was notice to the plaintiff that the defendant intended to raise on the appeal questions of law only, and he could not anticipate that a well settled rule ■of practice would be overlooked by the general term.

While this rule does not exist in the Code, it is now so firmly established by the decision of the general terms and of this court that it must be adhered to, or the result will be great confusion in the preparation of cases on appeal.

The learned general term that decided this case in the authority last above cited in affirming a judgment of the special term very .appropriately said: “This rule is so well established that a respondent may properly rely upon it. And after a case has been made in a manner appropriate.only for a review of questions of law, to reverse a judgment upon the facts would be an injustice to the respondent, who has a right to rely upon the court enforcing the rule it has announced for the guidance of litigants.”

But notwithstanding that we think the facts were not before the general term for review, we have carefully examined the evidence in the case and are of the opinion that within the rules that govern appellate courts in reviewing the determination of trial courts upon questions of fact, the general term erred in'reversing the judgment.

An appellate tribunal is not warranted in reversing upon the Sole ground that in its opinion the trial court should have reached a different conclusion upon conflicting evidence. To justify a reversal, it must appear that the findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion. Baird v. Mayor, etc., 96 N. Y., 567, and cases cited.

It was said in that case by the chief judge that when there is evidence on both sides and the case is balanced, and the mind of the court has been called upon to weigh conflicting statements and inferences and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptation of the trial court to investigate and determine such questions. That a proper regard for the advantages possessed by that court in the disposition of questions affecting the credibility of witnesses, and those depending upon the weight and authority of conflicting evidence, requires great consideration to be accorded to its opinion.”

The general term in its opinion gave no effect whatever to the finding of undue influence or to the evidence upon which that finding was based. It appears to have rested its decision upon the ground that the plaintiff, at the time of executing the deed, understood fully the nature of her acts.

But obviously this conclusion did not dispose of the case. The-plaintiff claimed that she was unduly and unlawfully influenced by her husband and Adams to sign and execute the deed. Upon this issue there was substantially no contradiction of the evidence offered by the plaintiff.

Whatever may have been the plaintiff’s mental condition at the time of executing the deed, the proof was positive that while sick and in an enfeebled condition she was subjected to continued persuasion and urging, from which she finally sought relief in acquiescence in the wishes of her husband. “Anything you want, only let me alone," was the expression as testified to by Adams, which, wrung from her after hours of importunity, announced her consent to execute the instrument

Without awaiting her recovery from her sickness, without time for reflection or opportunity to take counsel or advice from any person except those who were pressing her to this action, late at night an attorney was called in, the deed prepared and signed by the plaintiff while she was supported in her bed by her sister. A deed executed under such circumstances cannot be said to be the result of free action. It was the product of importunity which the plaintiff in her weak condition was unable to resist, which destroyed her independent action and amounted to moral coercion.

It is unnecessary to refer in detail to the evidence which has controlled our judgment, or to say more than that, after a careful examination of the record, we think the findings of the special term were supported by the weight of testimony, and, giving full effect to the opportunity that court had to hear the evidence and observe the manner of the witnesses, we think its conclusion should control the final disposition of the case.

The order of the general term should be reversed and the judgment of the special term affirmed, with costs.

All concur, except Follett, Ch. J., who concurs on first ground only, and Haight, J., absent.  