
    Peter J. Dorchester, Resp’t, v. Edward C. Dorchester, et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed, October 19, 1888.)
    
    Insanity—Bill of sale—Action to set aside—Burden of proof rests. ON PLAINTIFF.
    In an action brought by a person to set aside a bill of sale, executed by him, on the ground of his mental incapacity at the time of the execution of the assignment, and because it was procured by fraud, and undue influence, the burden of proof rests on the plaintiff to overcome by a clear preponderance of evidence the presumption of sanity aud competent mental capacity, which obtains in the case of every person of full age, who has not been judicially declared of unsound mind or incapable of managing his affairs.
    Motion for a new trial, and appeal by defendant from an interlocutory judgment, entered on the report of a referee, setting aside a bill of sale or assignment to the defendant, Dorchester, of all the interest of the plaintiff in the co-partnership, with the defendant Eose, in the business of hardware merchants.
    
      William F. Cogswell, for app’lts; D. B. Backentose, for resp’t.
   Per Curiam.

We do not think that the evidence in this case warranted the finding of either incompetent mental capacity on the part of the plaintiff, at the time of the execution of the assignment, or of fraud or undue influence, on the part of the defendant, to procure the assignment to be made. On the first of these questions the burden of proof was on the plaintiff at the outset, and was not to be shifted in consequence of any proof to be made by him, in respect to the relation in which the parties stood to each other, or the character of the transaction which was the subject of inquiry. It was incumbent upon him, in order to make out his'case, in this respect, to overcome, by a clear preponderance of evidence, the presumption of sanity and competent mental capacity, which obtains in the case of every person of full age, who has not been judicially declared of unsound mi rid, or incapable of managing his affairs.

This we think he has not done; but, on the contrary, that the evidence shows affirmatively that at the time of the execution of the assignment and for a considerable time-before, the plaintiff was sober and capable of doing business. If, as he testifies, he was, at the time of giving his testimany, oblivious of the transaction, the proof clearly shows that he had not been so at all times since it occurred; and his failure of memory, on the subject, at any time, might be more probably accounted for as resulting from an attack of paralysis which he sustained some months after the transaction, than upon the theory of any abnormal condition of mind existing at the time.

On the second question proposed, if it were to be conceded that a prima facie case of undue influence was made out by proof of the relationship between the parties, and the character and circumstances of the transaction itself, and, thus, the burden was cast upon the defendant of relieving himself from the suspicion of wrong on his part, and of showing that the plaintiff acted without restraint and under no coercion of his will (Matter of Smiths’ will, 95 N. Y., 522), we think this requirment was fairly met by the evidence in support of the defendants denials. In respect te every instance of suggestion or request on the part of the defendant, to which the plaintiff testifies, he also testifies that it was met by a prompt and decided refusal on his part. The assignment was in fact drawn by an attorney acting under the instruction of the plaintiff alone, and was subsequently executed in the presence of another third person who signed it as a witness at the plaintiffs request; the defendant not being present on either occasion.

We are not disposed to indicate, here, our estimate of the probative force or effect, on the issues of the case, of any of the particular facts and circumstances disclosed by the evidence; we have examined the entire evidence with care and are of the opinion that, on the whole, the case presented by this record does not support the conclusions of fact found by the referee. We are therefore of the opinion that, the judgment should be reversed and a new trial granted, with costs to abide the event.  