
    Sadie L. Stephenson, Appellant, v. Lydia L. Southerland, Respondent.
    Second Department,
    April 4, 1912.
    Appeal — effect of failure of trial court to make findings of fact — deed — delivery in escrow — evidence — cross-examination to show complete transaction.
    Where in a suit in equity to compel the delivery of a deed the trial court makes no findings, a judgment dismissing the complaint is not on the merits, but merely one of nonsuit and brings up for review questions of law only.
    The question of the delivery of a deed is one of intention to be ascertained from the surrounding circumstances.
    Where an owner of lands directed attorneys to draw a deed to a certain grantee which she subsequently executed, except that the space for the consideration was not filled in, and left the deed with the attorney with an understanding that she and the grantee would subsequently return and close the transaction, which they faded to do, there was no delivery, even if it be assumed that the attorney was agent of the grantee. Under such circumstances the attorney merely held as bailee to await the happening of a future event.
    Where the plaintiff seeking to compel the delivery of the deed calls the attorney who drew the deed as her own witness, the defendant on cross-examination may show what conversation took place between the attorney and -herself when she executed the deed and left it with him. As the plaintiff showed but part of the transaction the defendant on cross-examination was entitled to have the whole appear.
    Appeal by the plaintiff, Sadie L. Stephenson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day of January, 1911, upon the decision of the court rendered after a trial at the Kings County Special' Term dismissing the complaint.
    
      Robert H. Wilson, for the appellant.
    
      James E. Smyth [Adolph Kiendl with him on the brief], for the respondent.
   Carr, J.:

The plaintiff appeals from a judgment that dismissed her complaint. The action was brought in equity to compel the delivery of a deed to the plaintiff which, according to the allegations of the complaint, had been theretofore executed and delivered by the defendant to certain third parties for the use of one John Lewis and subsequently returned to the defendant by said third parties without authority from Lewis, under whom the plaintiff claims. The only controversy in the case is whether the defendant had ever delivered the deed to said third parties for the use of Lewis. The trial court made no finding, and the judgment, therefore, is to be considered as not on the merits but simply one of nonsuit, and the only question now up for review is one of law. (Ross v. Caywood, 162 N. Y. 259; Ware v. Dos Passos, Id. 281.) The evidence introduced by the plaintiff shows that Lewis went to the office of a firm of attorneys in Brooklyn, known as Kiendl Brothers, and told a member of the firm that a Miss Carter (now Lydia L. Southerland) had sent him to them to have a deed drawn for her as grantor to Lewis as grantee, conveying certain real property in Brooklyn, and at the same time handed them an old deed or some other paper containing a description of the property. The attorneys drew a deed and notified the defendant to appear at their office. She came, executed and acknowledged the instrument and left it with the attorneys. She had been a client of these attorneys before this happening, but Lewis had never had any business dealings with them theretofore. In the deed as executed a blank, space was left for the recital of the consideration. It bore a seal. The attorney who supervised the execution of the deed testified that the grantor, when she left the deed with him, stated that both she and Lewis would return together subsequently to close the transaction. They never returned together to the attorney’s office, though Lewis thereafter sent a messenger there to get the deed, but it was not given to him. Shortly thereafter Lewis died, and the attorneys returned the instrument to the grantor. The theory of the plaintiff is that the attorneys were the agents of Lewis, and that when the grantor left the executed deed in their custody it was a delivery to them as agents of Lewis for his use. The question of delivery of a deed is one of intention to be ascertained from the surrounding circumstances. (Brackett v. Barney, 28 N. Y. 333, 340; Carnes v. Platt, 6 Robt. 270, 281; Fisher v. Hall, 41 N. Y. 416.) “It is true that the mere handing of a deed to the grantee or his agent authorized to receive it, is presumptive evidence of an intent to deliver it, so as to take effect instanter as the deed of the grantor; but this presumption may be overcome by attendant circumstances.” (Carnes v. Platt, supra.) Assuming, but not deciding, that these attorneys were 'the agents of the grantee, yet the attending circumstances show no delivery to them by the grantor with the intent of divesting title, but simply a deposit of the instrument with them as bailees to await a future event at which both grantor and grantee were to come together to close the transaction. Under these circumstances there- was no delivery of the deed in question. The appellant contends, however, that the trial court erred in the admission of improper evidence. The plaintiff called one of the attorneys, Mr. Theodore Kiendl, as her own witness. On his direct examination he testified that the defendant executed and acknowledged the deed and left it with him. On cross-examination he was asked what conversation took place between him and the defendant when she executed the deed and left it with him. This was objected to, and' to allowance of this inquiry an exception was taken. There is no merit in this exception, as, the plaintiff showing but a part of the one transaction, the defendant was entitled on cross-examination to have the whole of the transaction appear.

The judgment must be affirmed, with costs.

Jenks, P. J., Hirschberg, Thomas andBiCH, JJ., concurred.

Judgment affirmed, with costs.  