There was no motion by either side for the direction of a verdict, but the motion on the minutes for a new trial should have been granted. When the defendants produced and put in evidence the deed of conveyance under which they claimed, a presumption of fact at once arose that it was delivered as. of its date (Strough v. Wilder, 119 N. Y. 530). In this state of the case the plaintiff claiming under the will and "the defendants under the prior deed—' the defendants were entitled to the verdict as matter of law. But their learned counsel, not satisfied with this, would go further, and having .called the lawyer who drew the deed, and the other living witness to.the transaction, it was claimed for the plaintiff that such oral testimony raised a question of fact whether the deed was delivered with intent to pass, title, and on this question the jury found against the defendants. But the presumption of delivery was not impaired by the oral evidence. The parties arranged that the property was to' be conveyed, the grantor retaining the use for life, and the deeds were "delivered in pursuance of this arrangement. This was the oral evidence. It is not necessary to determine whether this oral arrangement was valid, for whether the deed vested full title *653presently, or only title subject to a life estate in the grantor, matters not. In either case it conveyed the fee presently (Hathaway v. Payne, 34 N. Y. 92). The leaving of the deeds with McBride during the grantor’s Jife was only to make certain that they should not be recorded.
Two years after executing the deeds the grantor made a lease-of all the conveyed real estate to McBride with a right of renewal for ten years more to the lessee. She afterwards brought a suit against him to cancel such lease. In her complaint she alleged that she owned the land. This was admitted by McBride in his answer; and on the trial he did not disclose in the witness box that the deeds had been made. These things do not discredit his present testimony. His answer was correct pleading. He could not raise an issue of her ownership. It sufficed that she had a life estate and could make a valid lease. An allegation in his answer that she had made the deeds would have been wholly irrelevant and would have raised no issue. He cannot be discredited now for having pleaded scientifically. The same is true of his failure to tell of the deeds. , He was not asked to and such a question would have been irrelevant. Failure to volunteer cannot discredit a witness (Huebner v. Roosevelt, 7 Daly, 111; Commonwealth v. Hawkins, 3 Gray, 463); and especially must this be so of irrelevant matter. But if the evidence of McBride and the lawyer were, suspected and discarded, there would still' be no evidence of the non-delivery of the deed, and the presumption of its delivery would prevail.
A similar case under another óf the deeds has been here before (Ranken v. Donovan, 46 App. Div. 225).
The judgment and order should be reversed.
Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred.
Judgment and order reversed and-new trial granted, ■ costs to abide the event.