
    Rachel Wertheimer, Respondent, v. Jerome C. Baum, Appellant.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Gifts — Inter vivos or causa mortis — Revocation — Upon failure of engagement to marry.
    The gift of a diamond ring, by a mother to the man engaged to marry her daughter, at the time of the engagement, will be presumed to be irrevocable; and the unexplained failure of the engagement to result in marriage will not be sufficient ground for the recovery of the ring by the donor on such failure, in the absence of proof of bad faith on the part of the donee as well as delivery subject to express conditions not performed.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fourteenth district, borough of Manhattan, after a trial before the court without a jury.
    
      Sigmund Horldmer, for appellant.
    A. M. Simon, for respondent.
   Dayton, J.

The action w-as brought to recover the possession of a diamond ring. The judgment, as amended on plaintiff’s motion, awarded the plaintiff possession of the chattel, or, in the alternative, the sum of $175 and costs. The ring in question was given to defendant by plaintiff at or near the time of his engagement to her daughter. It was undisputed on the trial that defendant had given a valuable engagement ring to the daughter. For reasons, which are not apparent upon the record, the engagement was broken; and plaintiff, upon the theory that her gift was conditional upon the continuance of the relation, brought this action. Defendant contended that there was simply an exchange of gifts between the prospective bride and groom. It is well settled that a gift of property requires no consideration and is made perfect by delivery, and that a gift inter vwos is irrevocable. Defendant, therefore, had title to the ring, no fraud or duress being claimed. Where goods are sold and delivery is apparently absolute the onus of proving a conditional sale rests with the vendor. Ho authority has been cited holding that an unexplained failure of a condition restores title to the donor of a delivered gift. Mr. Justice Tompkins, in Liebert v. Hoffman, 55 Misc. Hep. 108, says: While the law is that a gift inter vivos must be established by satisfactory proof, yet where the gift is attacked the burden of explaining the transaction is only upon the donee where some confidential or fiduciary relation existed, or where one party is mentally weak,” etc. In any aspect, the plaintiff was bound to show bad faith on defendant’s part as well as delivery subject to express conditions not performed. This she did not do by preponderance of proof. On the whole case, we conclude that plaintiff failed to establish a cause of action. Defendant’s motion to dismiss the complaint should have been granted.

Since the judgment must be reversed,- we do not deem it necessary to pass upon the objections raised by counsel for the appellant as to the manner and time of its amendment.

Gildersleeve and Gerard, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  