
    The Murray Hill Bank, App’lt, v. Elizabeth Van Antwerp et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Findings — Not disturbed unless clearly against the weight oe evidence.
    Findings of fact are not to be disturbed on appeal unless unsupported by or clearly against the weight of evidence.
    3. Deed—Charges of fraud must be sustained in action to set aside.
    Where a complaint in an action to set aside a conveyance of real estate was dismissed and the evidence justified the conclusion that the charges of fraud were unsustained, Held, no error.
    Appeal from judgment dismissing complaint. S. Untermeyer, for app’lt; W. C. Beecher, for resp’ts.
   Brady, J.

This action was brought to set aside an •alleged conveyance of real estate made by the defendant Elizabeth Van Antwerp to her mother Mary L. Trotter, and also to set aside an agreement by which the defendant cancelled aud surrendered to her mother an agreement made when the property conveyed was purchased in their joint names and subsequently reduced to writing; and also to have the mortgage on the real estate held by the defendant Theodore V. A. Trotter declared satisfied.

On the trial the complaint was dismissed as to Theodore V. A. Trotter, the plaintiff, admitting that no case had been established against him.

It is not deemed necessary to set out in this opinion a detailed statement of the various facts and circumstances which were developed by the testimony as the cause progressed.

It is sufficient to say that the allegations of fraud upon which the plaintiff alone could recover were not established by the testimony. The learned justice presiding in the court below found against the plaintiff on that issue and expressed his views in an elaborate opinion, to which it is thought no exception can be taken, inasmuch as it considers the prominent features of the plaintiff’s case and shows that they would not justify a finding of fraudulent conduct.

It is perhaps unnecessary to say that findings of fact by the court are not to be disturbed on appeal unless unsupported by or clearly against the weight of evidence, which, from what has been already said, it may be assumed is not a feature of this case.

The learned counsel for the appellant has displayed great zeal in the presentation of the facts and circumstances by which he hoped to determine the fraudulent character of the transfers, and did all doubtless that professional industry and persistence could accomplish. But this was all met by the suggestion of the learned justice presiding in the court below, that upon the credible testimony and the undisputed facts he had no doubt of the inherent honesty and good faith of the transaction, and, further, that this view might seem questionable to creditors who observed nothing but the practical results of the transfer.

An examination of the evidence, aside from the opinion of the learned justice, justifies the conclusion that the charges of fraud, fraudulent inception, fraudulent intent, fraudulent design, or by whatever term the assumed improper conduct may be designated, were unsustained.

If any adverse criticism upon the conduct of the parties may, with any propriety, be indulged in, it can only be to the effect that Mrs. Yan Antwerp chose in the exercise of a legal right to prefer her mother as a creditor, to whom she was under pecuniary obligation, and whom she designed naturally and properly to protect, finding herself in a position of financial distress arising from the improvidence or misfortune of her husband who had employed her large-estate unsuccessfully in his business transactions.

The judgment should be affirmed.

Bartlett and Daniels, JJ., concur.  