The plaintiff in this action, prior to the 30th day of June, 1896, was the owner in fee of certain premises situate in Bath Beach, Brooklyn. The defendants, Ellen Sullivan and Timothy Sullivan, occupied a portion of the premises as tenants, plaintiff occupying a room on the top floor and taking her meals with the defendants, who were husband and wife.1 Sometime during the month of June, the plaintiff received a notice from the Comptroller to the effect that several years’ taxes were due, and that the premises would be sold to satisfy the claims of the State. The plaintiff’s husband hád left her some years before, and her family were scattered. She went to Timothy Sullivan with this notice and asked him what to do. He advised her to go to a cousin, who was said to be able to help her, and tó get the money necessary to pay the taxes. The plaintiff agreed to follow this .advice, and reported that she had done so, but that the cousin refused to do anything for her. Hr. Sullivan talked the matter over with her. There were some liens against the property amounting to something over $300 ; he proposed that the plaintiff deed the property (the equities in which are conceded to be $1,500) to his wife, in consideration of an agreement on their part to take care of her during her natural lifetime, and to give her a decent and. respectable burial at her death. Hr. Sullivan told her not to act -hastily in the matter; to go and talk it over with her friends and tell' the people just what he had proposed. Plaintiff said she was perfectly satisfied; Hr. Sullivan employed a neighbor, a lawyer, to draw up the deed; this was read to her, both by Hr. Sullivan and by Hr. Iiahneman, the attorney who *426drew the deed, and the plaintiff signed and executed the deed, 'which was afterward properly recorded. Subsequently the defendants executed a mortgage for $500 to the. Title Guarantee and Trust Company, and with the proceeds paid off the incumbrances upon the property. ' The plaintiff continued to live with the defendants, was taken ill, was .treated -by a physician, the expense being paid by the defendants. In November, plaintiff’s daughter came to the house of the defendants and took the plaintiff away. It is alleged that the defendants have failed to-perform their part of. the contract, but the evidence, which is not disputed, shows that they did fulfill their part of the contract up to the time of the departure of the plaintiff; that they assured her. that there was a home for her there whenever she wanted to come back, and they still assert a willingness to afford her a home. It is alleged that the plaintiff left because of harsh or cruel treatment on the part of Mrs. Sullivan; but the evidence does not warrant the conclusion that there was any such conduct on the part of the defendants, or either of them, as to defeat the purposes of the contract, and the plaintiff admits that Mr. Sullivan- had always treated her kindly. '
The learned court before whom' the case was tried stated at the close of the evidence: “T do not think'this transaction can be upheld. The plaintiff was in a dependent condition in relation to Mr. S.ullivan and his wife. That I spell out of the facts, and it is overwhelmingly corroborated by the appearance of the woman; my seeing her and hearing her testify,” and judgment was ordered for the .plaintiff, setting aside the deed and granting the plaintiff a money judgment for $210, without costs. What principle was ■ made use of by the learned court to “ spell out ’’ that the plaintiff was in such a dependent condition in respect to the defendants as to raise a presumption of fraud, I am unable, from a careful;reading of the report, to determine; and I am forced to conclude that it is not one common to the jurisprudénce of this State and that it ought not to receive the sanction of an appellate court. The appearance of the plaintiff two years and six months after the contract was made and the deed executed, cannot certainly afford conclusive evidence of the alleged fact that the plaintiff was in a dependent position as to these defendants at the time she executed and delivered the deed *427which it is now proposed to set aside. The relations between the parties were not confidential in any legal sense; the defendants were her tenants and she was boarding with them. Mr. Sullivan testified, and the plaintiff admitted on her cross-examination, that he advised her to be careful what she did and to talk the matter over with her relatives. It appears from the evidence that several weeks elapsed between the time the deed was drawn and the date of its signature and execution. “ Sanity and ability to transact business are the usual and ordinar y conditions of gro wn men,” say the court in Jones v. Jones (137 N. Y. 610, 612), “ and he who asserts a lack of ability on the part of a grantor to execute a deed, whose due execution is prima faeie shown, must prove that lack of. ability by a preponderance of evidence,” and this rule ought not to be modified where the grantor is the plaintiff and where she has received a portion, at least, of the consideration and the defendants are ready and willing to perform all of the conditions of the agreement which made up the consideration.- Pomeroy’s Equity Jurisprudence (§ 951) lays down the rule, quoted with approval in Fisher v. Bishop (108 N. Y. 25): "Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted ; where there is no such fiduciary relation, the confidence and influence must be proved, by satisfactory extrinsic evidence.” There was no antecedent fiduciary relation involved in this case; there was no extrinsic evidence to show that the plaintiff relied upon the defendants, any more than any perso'n may be said. to. rely upon those with whom they contract. There is nothing unjust or inequitable in the contract so far as appears from the record; it is one quite common to our every-day experiences, and there is no evidence in the case, so far as I have been able to discover, which would justify the conclusion that the plaintiff was dependent upon the defendants in such a sense as to raise any presumption against their entire good faith.
The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.
Judgment affirmed, with costs.