
    EDLICH v. GMINDER.
    (Supreme Court, Appellate Division, Second Department.
    November 15,1901.)
    Deed—Delivery—Acceptance—Necessity—Presumption.
    A deed executed and recorded without the knowledge of the grantee will pass title to the land without actual delivery and acceptance; the deed having passed absolutely out of the control of the grantor, and acceptance by the grantee being presumed from the fact that the conveyance is beneficial.
    Appeal from special term, Kings county.
    Action by Mary Edlich against Augusta Gminder. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before GOODRICH, P. J„ and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.
    August P. Wagener, for appellant.
    James A. Sheehan, for respondent.
   WOODWARD, J.

On June n, 1892, George F. Gminder and. his wife, Augusta Gminder, the defendant in this action, made and executed a deed of certain premises to Mary Edlich. This deed was recorded on June 21, 1892, in the register’s office of Kings county, without the knowledge of the grantee, but subsequently the' defendant called upon the plaintiff and told her that the premises were in her name; and in this situation matters stood until November 11, 1897, when a deed purporting to have been made and executed by the plaintiff, conveying the said premises to the defendant, was entered of record in the register’s office of Kings county. This action was brought to have the said last-mentioned deed declared “a forgery and wholly void; that the same be delivered up to plaintiff for5 cancellation, and the same be canceled of record,” etc. The defendant put in a general denial, and upon the trial undertook to establish that the conveyance was not made to the plaintiff in the first instance, but to another party of the same name, and that no delivery of the deed had ever been made to and accepted by the plaintiff. The learned court at special term found the facts in favor of the plaintiff, and a judgment was entered in harmony with the facts and the conclusions of law reached by the court. From the judgment entered, an appeal comes to this court.

The decision of the learned court that the plaintiff was “at all the times mentioned in the complaint the owner in fee of all the premises described in the complaint, and is still the owner in fee of said premises, and entitled'to the possession of the same,” is abundantly supported by the evidence. The evidence of "the defendant that there was another Mary Edlich, who was the grantee intended, is so utterly devoid of probability, and is so inconsistent with all of the known facts in the case now before us, that it could not be sustained except upon evidence which was beyond the reach of suspicion.

But the appellant urges that even if the plaintiff was the grantee intended in the original deed of June 11, 1892, there was no delivery and acceptance of the same, and it did not, therefore, operate to give the plaintiff title to the premises. It will be conceded that the acceptance of a deed by the grantee thereof is as necessary to a change of title'as its delivery. Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051. But the rule is well established in this state that “if the delivery to the third person be absolute, the grantor not reserving any future control over the deed, the estate passes; the assent of the grantee to accept the conveyance being presumed from the fact that the conveyance is beneficial to him.” Bank v. Bonnell, 46 App. Div. 302, 305, 61 N. Y. Supp. 521, and authorities there cited; Rosseau v. Bleau, 131 N. Y. 177, 183, 30 N. E. 52, 27 Am. St. Rep. 578, and authorities there cited. That the deed in the present controversy was dated June 11, 1892, acknowledged on the same day, and duly recorded in the office of the register of Kings county on July 21, 1892, there can be no question; nor can there be any doubt that the deed, having been recorded, had passed beyond the control or dominion of the grantors. -While there is perhaps a conflict of evidence as to the view in which the plaintiff regarded the transaction, there is no such preponderance of evidence as would justify this court in interposing. In fact, the evidence is of such an improbable character in some'instances that it is entitled to no weight, and we cannot understand how the court at special term could have reached a different conclusion.

The judgment appealed from should be affirmed, with costs. All concur.  