The court below has found “ that plaintiff has failed to establish that an agreement by the daughters to reconvey upon demand was made prior to the execution and delivery of the deed to them ”. There is nothing in the opinion below to warrant an assumption that this holding was limited to plaintiff’s failure to prove an agreement in express words for reconveyance to him. We must assume that the Trial Justice held that plaintiff had also failed to establish an inartieulated agreement that the daughters would reconvey on request, or the ldnd of understanding which can sometimes be extracted from a confidential family relationship even “ Though *428a promise in words was lacking ” (Sinclair v. Purdy, 235 N. Y. 245, 254).
■Since there was ample evidence to support a holding that no express or implied agreement and no understanding for reconveyance was reached among the parties, and since there was no reversible error in the conduct of the trial, there is no warrant for affording plaintiff a second opportunity to obtain the same relief denied him upon the trial. I therefore believe the judgment appealed from should be affirmed. However, it may be that plaintiff can prove a constructive trust based upon an understanding, not that he could obtain a reconveyance upon request, but that he was to continue to retain the use of the property and the rents and profits therefrom for his lifetime. In that event, he may be better advised to bring an action for such relief; or in view of the direction for a new trial, to move to amend his complaint appropriately in the within action.