(dissenting) ,:
. - This is.an-appeal from a judgment setting aside a deed o-f conveyance-.of certain real-estate in the city of Mew York executed and: ".delivered on the 5th of April,-1900, by the- plaintiff to. her daughter, the. defendant. . The premises, subsequent to the- conveyance, were.acquired.by the Mew York Central and Hudson Elver Bail-*329road Company in condemnation proceedings, and the amount paid therefor — $19,500 —is mow held by the city chamberlain. At the time of the execution and delivery of the deed the daughter exercnted and delivered to the mother a life lease of the premises con- - veyed. The mother thereafter remained in possession until the premises were acquired by the railroad company. The conveyance is set aside upon the ground that its execution and delivery were the result of fraud and undue influence of the daughter. As I read the record there is no evidence justifying a finding to this -effect, but on the contrary the testimony of the plaintiff herself ■conclusively disproves it. It may be that the conveyance was induced by what the daughter said, but, if so, it falls far short of proving the fraud or undue influence necessary to be established to justify a court of equity in setting it aside. The mother was old, in poor health, had become involved in litigation concerning the prop•erty, and besides she had, in speculation a short time before, lost •considerable money. Hnder such circumstances it is not strange • that the daughter should endeavor to have the .title to this property — which seems to be substantially all the mother had — secured in .-such a way that the mother would at least have the use of it during her life. Her purpose in this respect, instead of being condemned, is worthy of commendation.
Hor is there anything in this record to show that the mother took ■any other view of the transaction until after the property was -•acquired by the railroad company, and then her dissatisfaction seems io have been not because she had executed the conveyance to the ■daughter, but because the daughter did not then buy her another place. The mother testified : “ Q. And you knew, in 1902, where ■she lived? (Referring to her daughter.) A. The property was not sold then. I did not bring any action then. Why should If Q. You were satisfied that she should have the property in her name? A. Yes. I was satisfied that she should have this property "until she threw me on the street. Q. When did she throw you on -the street? A. Was not my house sold?” The deed, as already said, was given on the 5th of April, 1900, and there was then pending an action which' had been brought by the mother to recover ■damages for certain alleged injuries to or rights in connection with fhe property. That action came on for trial in June, 1900, and the *330complaint was dismissed on the ground that the mother had given ■the deed in question. The daughter was then asked to reconvey, which she refused to do.. The mother, referring to such refusal, testified: “She¡said it was all right, and said at any,time the-house •was sold we would buy another piece of property. I asked her lots of times to give the deed back to me. She always refused to do so.” “ 1 said, ‘ Sophie, this property may be sold, what then ?!’ She turned •to me and said,/Mother, we will buy another piece of property and we will give it to you otithe same terms.’ I said, ‘All right.’ ” ' . Thus "matters - stood for over Ifive years, Or until this action was commenced on the 9th of June, 1905. The mother knew and appreciated what she had done by the giving of the deed- when the action above referred to was dismissed in 1900. She then -had the advice of counsel, who endeavored to have the daughter reconyey. Under such circumstances, even if the deed were the result of fraud and undue influence, the mother must be deemed to have waived it. One entitled to repudiate a contract .on the ground of fraud, oi-because it was induced by duress, must act promptly on discovering the • fraud or after the removal of the duress, and if he does not do so, ho will be deemed to have waived the fraud or duress and to have ratified the contract. (Schiffer v. Dietz, 83 N. Y. 300; Oregon Pacific R. R. Co. v. Forrest, 128 id. 83; 10 Am. &Eng. Ency. of Law [2d ed.], 337.) The plaintiff did not act promptly, and, therefore, upon that ground, as. Well as Upon the ground of failure to prove either fraud or duress, I am unable to agree with the majority of the court in affirming the judgment. I think it should be reversed, and the action being in equity, and defendant’s attorney having consented at the trial, in open court, that the plaintiff should have a life inter*est in the. fund held by the city chamberlain, a decree should be entered appointing a trustee of the fund for and during thé life of the plaintiff, and directing that the income therefrom be paid over to her semi-annually, without costs to either party.
Scott, J., concurred. , •
Judgment affirmed, with costs.