
    John P. Mahoney, App’lt, v. Mary A. Prendergast et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Former adjudication—No estoppel as between dependants in former ACTION IN WHICH THERE WAS NO ISSUE BETWEEN THEM.
    The mother of M. had a right of dower in certain premises. M. conveyed the premises through another to his wife. The mother then brought an action for dower against M. and his wife, and in that-action the conveyance by M. to his wife was declared to be without consideration. Subsequently M. brought this action against the defendant, devisee of his wife, to recover the premises. Held, that the recital in the judgment in the former action that the conveyance there was without consideration, was not an estoppel as to the defendant here; M. and his wife both being defendants in the former action, and there being no issue there as between them.
    Appeal from judgment for the defendants rendered at special term in an action to establish the title of the plaintiff to certain real estate devised to the defendant Mary A Prendergast.
    
      Charles Donohue, for app’lt; John J. Macklin, for resp’ts.
   Bartlett, J.

This action is founded on an ment between the plaintiff, John P. Mahoney, and his wife Anastasia B. Mahoney, now deceased. The plaintiff owned certain premises on Eighty-sixth street in the city of New York. In October, 1875, he conveyed them to Benjamin F. Hewes, and Benjamin Y. Hewes and wife thereupon conveyed them to the plaintiff’s wife. The plaintiff, in the third paragraph of his complaint, avers that these conveyances were made without consideration and under the following circumstances:

“ That said plaintiff was then engaged in business in the city of New York as a liquor dealer, and that said business was distasteful to his wife, the said Anastasia B. Mahoney, with whom the plaintiff then resided, and that on account of the many risks incident to said business, and for the better protection of the plaintiff, and in order that the said Anastasia B. Mahoney might have a support secured to her for life out of the rents and income of said premises, said plaintiff agreed to and with his wife, the said Anastasia B. Mahoney, and at her solicitation, to convey to her the premises above mentioned, upon condition that in the event of the death of the said Anastasia B. Mahoney before this plaintiff, she should devise the said premises by will to the plaintiff.”

The learned judge at special term expressly declares in his tenth finding of fact that the plaintiff, upon the trial of this action, wholly failed to prove the alleged agreement between himself and Anastasia B. Mahoney, set forth as above in the third paragraph of the complaint. -

He further found that in 1865, when the plaintiff married, his "wife was engaged as a public school teacher in the city of New York, and continued in that occupation up to the time of her death in 1887, receiving during the greater portion of that period compensation at the rate of $1,000 a year; that before the premises were conveyed to her she had expended thereon large sums of money out of her own earnings to preserve the property and pay charges upon it; that shé had also advanced large sums of money to the plaintiff out of her own earnings, so that he owed her upward of $5,000 at the time of the conveyances; and that the consideration for making such conveyances consisted of the moneys which the wife had paid out upon the property and advanced to her husband, who had become insolvent, and who intended to vest her with an absolute estate in the premises, thus preferring her to his other creditors, and securing her against loss.

Unless these findings of fact can be successfully attacked, the appeal must fail, and the judgment in favor of the defendant, Mary A. Prendergast, the sister to whom Mrs. Mahoney devised the land in controversy, must be affirmed. In the absence of any statement in the appeal book that it contains all the evidence given upon the trial, or all the evidence bearing upon the questions to be reviewed, the general term will assume that the proof before the trial judge was sufficient to sustain his findings of fact. Porter v. Smith, 35 Hun, 118; 107 N. Y., 531; 12 N. Y. State Rep., 479. The counsel for the respondents has called our attention to the omission of the appellant to procure the insertion of such a statement in the printed case before us, and we are not disposed to relax the rule which makes a certificate of this kind a pre • requisite to any review of questions of fact in this court; and certainly if the evidence suffices to support the findings we have mentioned, the correctness of the.conclusion of law that the complaint should be dismissed cannot seriously be questioned.

Indeed, upon such testimony as the appeal book does contain, whether it be all that was taken upon the trial or not, we think the result reached by the court below was fully warranted. We agree with the learned trial judge that the plaintiff’s letter to his wife, under date of September 12, Í881, clearly indicated his absolute relinquishment of all interest in the premises in suit. He would hardly have suggested a sale of the property, if any agreement had existed by which the fee was to vest in him at Ms wife’s death.

In behalf of the appellant it is insisted that proper effect was not given at the special term to a judgment which was proved to have been rendered in an action for dower brought by this plaintiff’s mother against himself and his wife after he had conveyed the property to the latter. The wife paid the amount recovered therein by her husband’s mother. One of the findings in that case recites the conveyance of the premises through Benjamin F. Hewes to Anastasia B. Mahoney and declares it to have been made without consideration and for the sole purpose of vesting the apparent legal title in the last grantee. It is argued that this finding is conclusive evidence against Anastasia B. Mahoney’s devisee, that there was no consideration for the transfer from the husband. The answer is, that the present plaintiff and his wife were co-defendants in that action; they were in no sense adverse parties to one another; no issue between them arofee, or was litigated therein; and hence no estoppel could arise against either in behalf of the other by reason of what was adjudicated in that suit as between them jointly on the one hand, and a third party on the other. The case is very different from Parkhurst v. Berdell, 110 N. Y., 386, 392; 18 N. Y. State Rep., 193, where there had been litigation between the two defendants as adverse patties.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.  