
    Second Department,
    April, 1907.
    Bert N. Dawley, Appellant, v. Mary Pearson, Respondent.
    
      Vendor and purchaser—evidence showing that conveyance of real estate was not made under misunderstanding.
    
    Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hassau on the 2d day of May, 1906.
   Judgment affirmed, with costs." Ho opinion. Woodward, Jenks and Miller, JJ., concurred; Hooker, J., read for reversal, with whom Hirschberg, P. J., concurred.

Hooker, J.

(dissenting): The judgment appealed from by the plaintiff refused to decree a specific performance, of a contract for the sale of real property. The contract was a short, but nevertheless complete, agreement of sale. The courfound as facts that the defendant was of foreign birth, unable to read or write the English language, considerably' advanced in years, altogether unfamiliar with business matters, was ill at the time she signed the memorandum and did not understand, that "the instrument she signed was a contract by the terms of which she agreed to sell thepróperty. The judgment should be reversed on the " ground that it is against the weight of evidence. The matter of her illness was in dispute at the trial; but even if she were ill, the evidence leads unmistakably ■ to the conclusion that she was fully aware of what she was doing and of "the effect of her act in signing .the contract of sale. At the time she signed the ' memorandum she accepted §100 on account of the purchase price and the next day deposited it in bank; three days after the memorandum was signed, in company with her daughter she Went to the office of the agent in whose hands the property had formerly been placed for sale, and stated that she wished tp give him back' the §100 and pay him his commissions; and it was shown by the evidence of one Barthman,.who was the only disinterested witness sworn on the trial, that on the day she signed the memorandum he called upon her and tried to buy the premises, but she told him that the farm was sold, that she had signed a contract that morning and .had accepted a deposit. These acts of the defend- " ant were so entirely inconsistent with the claim she made upon the trial that she did not realize that she was making a sale of the farm, that the" judgment must be reversed and a.new trial ordered upon the - payment hy the appellant of the costs of the trial already had. Hirschberg, P. J., concurred.  